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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, April 19, 2007 ::
    The Carhart decisions

    A pretty good piece of work by Justice Kennedy. Some very blunt language about the nature of abortion has now gotten into an opinion of the Court. Not only about the partial-birth kind: though it's dicta, since it's not strictly necessary to the result reached, the Court spoke about abortion in general in a way that pointedly avoided the common euphemisms.

    With language that applies Casey without endorsing it, Kennedy manages to keep Scalia and Thomas on board for the whole decision, thus making it a decision of the Court.
    The principles set forth in the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) , did not find support from all those who join the instant opinion. See id., at 979–1002 (Scalia, J., joined by Thomas, J., inter alios, concurring in judgment in part and dissenting in part).
    No kidding. (And now we know what happens to Supreme Court Justices when they die, like Rehnquist and White: they become alios.)
    Whatever one’s views concerning the Casey joint opinion, it is evident [that] a premise central to its conclusion—that the government has a legitimate and substantial interest in preserving and promoting fetal life—would be repudiated were the Court now to affirm the judgments of the Courts of Appeals [disallowing the statute].
    Well now you're talkin'. One can affirm that Casey does not lead to a right to partial-birth abortion without affirming Casey itself. "Join me," as they say.

    Why not overrule Stenberg? Because, if you believe the Court, there were enough differences between the statute there and the statute here that revisiting Stenberg was not necessary.

    That said, however, there is no sign that Kennedy thinks more highly of Stenberg now than when he wrote his blistering dissent in that case; ergo, the votes may well have been there to overrule it. As Scalia said explictly in his concurrence in Webster, and implicitly in Smith (whether to apply and/or extend Sherbert was an issue whether the parties briefed it or not), the application of an assertedly controlling precedent always draws that precedent into question, because the Court has to decide whether that precedent really controls, or whether something else does.

    So again, why not overrule Stenberg? Possibly because Roberts, Kennedy, and Alito do not share Scalia's Webster view, which in any case Scalia has not consistently held (e.g. in his Troxel dissent he disclaimed any desire to overrule Meyer and Pierce because "that has not been urged").

    The new Chief has spoken in favor of narrower decisions that produce consensus, rather than sharper ones that produce 5-4 margins and an irate dissent. But here, they went for the narrow holding -- and they still got a 5-4 margin and an irate dissent. So that sure worked, didn't it.

    Thomas, of course, had his say separately (Scalia joining), to reassert that he does not recognized the validity of Roe, Casey, or Stenberg.

    Should pro-lifers and judicial conservatives be alarmed that Roberts and Alito did not join the Thomas concurrence? Not necessarily. That would have produced a Kennedy-only viewpoint, even though that viewpoint would stand as an opinion of the Court. Cf. Lee v. Weisman, where Kennedy wrote the opinion based on his "coercion" theory of high-school graduations, while all four of the Justices who joined his opinion wrote separately to take much stronger separationist stands. This made the Kennedy opinion, even though it was "of the Court," seem like an idiosynchratic outlier.

    If Roberts and Alito had previously, as Supreme Court Justices, expressed the same views that Scalia and Thomas did in Casey, then I would consider it alarming that they did not do so here. As it is, they have no past Supreme Court stances to reiterate; therefore, their better course was to bolster the Kennedy opinion, and keep their counsel on the underlying issues for now.

    :: David M. Wagner 12:19 AM [+] ::

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