Spot the Radical

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The New York Sun

As the Supreme Court prepares to disclose its big Obamacare decision, the questiuon about which we find ourselves thinking is how to spot a radical. This reverie was triggered by a piece in the Daily Beast. It ran under a headline referring to “America’s robed radicals” on the Supreme Court. “Republicans like to denounce the so-called extremism of the liberal Warren Court,” the introduction said, “But the 5-4 decisions of the Roberts Court are the most divisive in American history.” In the piece, one of the stars of the Daily Beast, Michael Tomasky, took a look at a number of “hot-button” cases decided by the Nine in the era of Chief Justice Roberts.

One of them was Gonzales v. Carhart. It turns out to be a classic case of “spot the radical.” The lawsuit was brought by a physician in Nebraska named LeRoy Carhart, who performed abortions and was opposed to a law passed in 2003 called the Partial Birth Abortion Ban Act. The act was passed by the Congress after the Supreme Court overturned a ban on partial birth abortions that had been passed by the state of Nebraska. So the Nebraska state ban is a good place to start, because it, too, resulted in a U.S. Supreme Court case that involved the same Dr. Carhart. The first case, known as Stenberg v. Carhart, it was also one of these five-to-four decisions.

Don Stenberg was the attorney general of Nebraska, and he was tasked with, among other assignments, defending its laws. Dr. Carhart challenged a law Nebraska had passed in 1997 outlawing partial birth abortions except where the life of the mother was at stake, an important point for, among others, religious Jews. The law in Nebraska was passed by a democratically-elected legislature. So whatever one thinks of Dr. Carhart’s opposition, it is hard to call the law itself radical. It seems to have been mainstream opinion in the Cornhusker State.

Dr. Carhart took it to the Supreme Court, and the Nine decided the matter in June of 2000 in a decision written by Justice Breyer. The majority reckoned that “some prosecutors and future Attorneys General” might use the law to pursue physicians who use the most common method of performing “previability second trimester abortions,” so that “all those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment.” The result, the court decided, “is an undue burden upon a woman’s right to make an abortion decision” and, ergo, unconstitutional.

It is not our purpose here to argue the merits of the Stenberg. Our purpose is to try to spot the radical. The court made that decision by a five to four vote. Was one of those five the radical? Or was it the four who voted, in vain, to sustain the ban on partial birth abortions that had been passed by the mainstream of the Nebraska legislature? Those four were Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas. If it was one of the five who went against the Nebraska mainsteam, which one was it — Justice Breyer, Justice Stevens, Souter, O’Connor, or Ginsburg?

The case that Mr. Tomasky cites as an example of the be-robed radicals at work came seven years later. It was launched by Dr. Carhart, who won in the lower courts. It was brought to the high court by the attorney general of America, Alberto Gonzales, who had been installed in office by a pro-life president who handily defeated in the 2004 election a pro-choice Democrat. By 2007, Rehnquist had died and been replaced by Chief Justice Roberts, and Justice O’Connor had stepped down from the high bench. The chief justices voted the same way in both cases, but Justice O’Connor’s successor, Samuel Alito, voted the opposite way she had, and the federal ban on partial birth abortions was upheld.

So where is the radical? Was it Justice Alito, who voted differently than Justice O’Connor? Or was it Justice O’Connor, who had voted against partial birth abortions restrictions only seven years earlier? Or was it all of the five in the majority? Or all of the four in the minority? Or was it the members of the United States Congress who passed a ban on partial birth abortions in 2003? Now that gets a bit tricky, because the vote in the congress was a solid bi-partisan majority. The ban passed 282 to 139 in the House, with 13 failing to vote, and 64 to 33 in the Senate, with 3 failing to vote.

So where’s the radical? We wouldn’t argue that the majority can never be radical. But where was the radical in the great struggle over the partial birth abortion ban? Was it Senator Pryor, just to pick a Democrat out of the hat, who voted for the ban? Or Harry Reid, who also voted for the ban? Or Senators Leahy, Daschle, Lincoln, Dorgan, Nelson, Johnson, Breaux, Carper, Conrad, or even Fritz Hollings, who also voted for the ban? Mr. Tomasky seems to think it has to be the be-robed majority on the Roberts Court, because a higher ratio of hot button issues are being decided by this majority. But in the case at hand, there is a theory that the radical may yet be identified as the physician, Dr. Carhart, who started both the partial birth abortion ban lawsuits in the first place.

The New York Sun

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