Robert Bork has two really good points in a recent article he wrote on the Alito nomination.
Point #1:
Chief Justice Roberts and Justice Alito will hear a lot about stability in the law, the virtues of stare decisis,
and the reliance many women have placed on that decision. The obtrusive
fact is that constitutional law has never been stable. Precedent counts
for less in constitutional law than elsewhere for the very good reason
that the legislature can correct the Court’s mistake in interpreting a
statute, but the Court is final when it invokes the Constitution and
only the Court can correct its own mistakes. For that reason, many
justices have made the point that what controls is the Constitution
itself, not what the Court has said about it in the past.
In other words: Stare decisis is fo’ suckas! (At least in Constitutional law.)
Point #2:
If judgments about the prudence of overruling are invoked, the justices should take note of the fact that Roe
lies at the center of the bitter polarization of much of American
society. In countries where the issue is decided democratically, no
such intense animus exists. Compromises are worked out and each side
knows that it is free to continue the public debate in hope of doing
better next time. That was, and would be again, the case in America if
the subject of abortion were returned to state legislatures and
electorates. Overruling Roe would not, as some Democrats will
claim, make abortion illegal, but merely the subject of democratic
regulation. We have paid a high price for a ruling that rests upon
nothing in the Constitution and was arrived at in an opinion of just
over 51 pages that contains not a line of legal reasoning.
This is a very interesting point. It’s true that in countries where the courts have not seized control of the abortion issue that there is less polarization. Unfortunatley, in many of those countries (at least the ones in Europe) that have functional majorities that are pro-abort. In other countries, though (like ones in South America and many parts of Africa), they have functional pro-life majorities.
Once we get Roe overturned (however near or far in the future that may be), we need to get a functional pro-life majority here and then strengthen it to the point that we can get a constitutional amendment protecting innocent human life.
The process of getting such an amendment will involve changing numerous "hearts and minds" (to use a MUCH overworked cliche), but the process needs to start with getting just FIVE hearts and minds where they need to be.
“Stare decisis is fo’ suckas!”
I pity the foo who believes in Stare Decisis!!
Meanwhile, in California’s 9th Circuit Court, parents whose children attend public school are denied the right to control their childrens’ sex education:
“We agree, and hold that there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it. We also hold that parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students. ”
Blogpost on the incident:
http://bookwormroom.blogspot.com/2005/11/big-brother-is-teaching-your-children.html
PDF of the opinion:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/E8695945B7C6F6B5882570AD0051320A/$file/0356499.pdf?openelement
The proper weight of stare decisis is one issue upon which Justices Scalia and Thomas disagree.
See under the heading “Thomas’s View on Stare Decisis: Refusing To Give Court Precedent Weight”:
http://writ.news.findlaw.com/lazarus/20050106.html
Scalia’s disagreement with Thomas doesn’t prevent him, however, from being a scathing critic of other justices’ use of the doctrine:
See Scalia’s dissent in Lawrence v. Texas:
http://straylight.law.cornell.edu/supct/html/02-102.ZD.html
and the reliance many women have placed on that decision.
Once we get Roe overturned (however near or far in the future that may be), we need to get a functional pro-life majority here
See how the devil works. He sure is a crafty fellow. So many women have relied on that decision for so long, that even if it’s overturned, all these people will want to vote to keep it legal. If there hadn’t been a Roe in the first place there would not have been this reliance and there might be a pro-life majority in most states. As it is, by the time Roe is reversed, there’ll probably be a pro-choice majority in most states.
Anyways, it’s good to hear Robert Bork weigh in with support for Alito’s nomination. Alito was one of eight justices Bork listed as being desirable prior to the nomination.
If there hadn’t been a Roe in the first place there would not have been this reliance and there might be a pro-life majority in most states. As it is, by the time Roe is reversed, there’ll probably be a pro-choice majority in most states.
Ah, but time will tell. Even if it doesn’t happen immediately upon an overturn or Row, a pro-life majority could develop over time, especially in the states where there will most certainly be greater abortion restrictions. Yes, there are too many women voters now who have had abortions, or been involved with one, but given enough time, that could change for the better.