Monday, April 10, 2017

Gorsuch and the alleged super-precedent of Roe v. Wade

Neil Gorsuch is just settling in as the newest U.S. Supreme Court justice, yet questions are already swirling about his future coworkers.

With judicial filibusters no longer U.S. Senate procedure and many incumbent Democratic Senators up for reelection in 2018, President Donald Trump will likely be pushing on an open door for court nominations. Three current justices are 78 or older, and all three are the critical fifth vote in favor of Roe v. Wade.

It’s with several of those facts in mind that U.S. Senator Dianne Feinstein grilled Justice Gorsuch during his hearings about his views on what she called the “super-precedent” status of Roe v. Wade. There’s no such thing as a “super-precedent,” and even if there was it certainly doesn’t apply to the most controversial Supreme Court case in history. Roe v. Wade is so controversial it has changed the judicial nomination process and is the direct source of our current rancor, from the “borking” of Robert Bork to the unprecedented filibuster of Neil Gorsuch.

The controversy over Roe v. Wade has overshadowed the case itself, leaving most Americans in the dark about it and its companion case, Doe v. Bolton. Most Americans have a vague understanding that Roe v. Wade legalized abortion in the first trimester. Few understand that the two cases legalized abortion for any reason through all nine months of pregnancy, superseding the laws and voters in all 50 states.

Fewer still understand that even Roe v. Wade’s supporters believe the case is pure legal mumbo jumbo. The well-known pro-abortion law professor Laurence Tribe put it more eloquently, "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."

A majority of Americans tell pollsters they are afraid to overturn Roe v. Wade. At the same time they say they oppose late-term abortions and oppose abortions done for economic or social reasons (which account for more than 90 percent of abortions performed). That’s a great disconnect. Americans are afraid to overturn a decision they don’t understand whose results they fundamentally reject.

Americans are in dire need of clarity about Roe and Doe given the likelihood of the cases being revisited very soon. What Americans don’t need is more disinformation. Roe and Doe are not “super-precedents” but cases that have disenfranchised voters from their beliefs and our democratic process.