As Republican candidates Mike Huckabee, John McCain, and Mitt Romney gather the lion's share of votes in the early primaries, former New York Mayor Rudy Giuliani has made a poor showing, coming in sixth in Iowa and fourth in New Hampshire. His polling leads have vanished.
p>The pro-choice Giuliani wagered that he could persuade the pro-life Republican base if he depicted himself as a strong judicial conservative. But mere judicial conservatism does not necessarily advance the pro-life cause, and social liberals like Giuliani cannot win the Republican nomination without taking more specific steps to the right on abortion.
p>Giuliani's central pledge on the social front is to appoint Supreme Court justices who are “strict constructionists.” Leading legal conservatives prefer the term “originalist” since they seek to discover the Constitution's original meaning, not its strict meaning. Touting “strict constructionists” might be a sloganeering necessity, but it also betrays a sloppy understanding of judicial restraint.
p>Pundits interpret “strict constructionist” as code for opposing
Roe v. Wade
, because in
the court “legislated from the bench” by inventing a right to abortion. Nevertheless, judicially conservative lawyers need not favor overturning
. This is true because of another phrase, “stare decisis” — or as Senator Arlen Specter
likes to call it
, “super-duper precedent.”
p>Stare decisis defers to past cases for many reasons, including consideration of the practical, societal effects of overturning a decision. A judicial conservative can disagree with