I Can Has a Judicially-Mandated Progressivism? - The American Spectator | USA News and Politics
I Can Has a Judicially-Mandated Progressivism?

Matt Yglesias:

In Ur Bedroomz, Confiscatin’ Ur Contraceptivz

Fred Thompson comes out against Griswold.

The body of the post is factually incorrect (more on that in a minute), and the lolcatzish headline betrays the liberal instrumentalist mindset that reduces jurisprudential judgement to a simple function of policy judgement. Justice Potter Stewart wrote in his Griswold dissent that while a contraceptive ban is “uncommonly silly… we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.” That this point flies over the head of otherwise intelligent people is remarkable.

Thompson has taken no position on Griswold, as is immediately obvious from clicking through. Scott Lemieux is making a silly leap in logic and claiming that if one says (as Thompson does) that Roe “was fabricated out of whole cloth,” one must therefore accept the implication that Griswold is wrong, because Griswold set a precedent for Roe. (In the update to his post, Lemieux comes rather close to admitting that he’s playing word games rather than making a serious point.)

P.S. Lemieux writes that the point that “overturning Roe would ‘send the issue back to the states'” is “a claim the Supreme Court’s decision to uphold the arbitrary federal ban on “partial-birth” abortions in Carhart II makes straightforwardly false.” This is, um, straightforwardly false. As Justice Thomas emphasized in his concurrence, Carhart didn’t touch on federalism. If one were to argue that the Court is unlikely to stand in the way of federal abortion legislation, it would make more sense to cite Gonzales v. Raich. But since the Raich majority included Ginsburg, Breyer, Stevens, and Souter, acknowledging this would require Lemieux to move beyond hackish rightward sniping, which I’m not sure he has any interest in doing.

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