From the Right



American Elites Will Use Tyranny and Slaughter Babies to Achieve Their Preferences!

Judge Andrew P. Napolitano on

Last week, when the pilfered draft of a Supreme Court opinion written by Justice Samuel Alito was leaked to the media, it saddened me deeply. My sadness was brought about by the realization that someone is trying to sabotage the highest court in the land. Justice Robert Jackson, who sat in the 1940s and 1950s, famously said that the Supreme Court is infallible only because it is final; it is not final because it is infallible.

Stated differently, under our system of government, the judiciary has the duty of interpreting the Constitution and federal laws, and it has the final say on what they mean; and the final step in the judiciary is the Supreme Court.

The court does not answer to the people; it is intentionally secret and even obscure. That's because the whole purpose of an independent judiciary is to be anti-democratic. Its job is to preserve and protect life, liberty and property from the overreach of the popular branches -- the president and Congress -- and from the states.

The unfairness to the court in general, and to Justice Alito in particular (full disclosure, we are college classmates who disagree on much and remain good friends), is that what was leaked was a work in progress. Any change from the leaked draft to the final opinion will provoke endless speculation.

The leaker is trying to effect the outcome of the case. If from the left, the leaker no doubt wants to shake loose the most tentative justice in the tentative majority. If from the right, the leaker wants to fortify the most tentative justice in the tentative majority.

Either way, the leaker's work is repellant.


What did Justice Alito write? He wrote that Roe v. Wade -- the 1973 case that bars the states from prohibiting abortion during the first and second trimesters of fetal development -- was wrong when decided and is wrong today because there is no constitutional text, history or tradition of the federal courts protecting or ruling on abortion.

At the time the Constitution was ratified, abortion was unlawful in all 13 states. In 1868, when the states ratified the 14th Amendment with its Equal Protection Clause, 28 of the then-37 states prohibited abortion. In 1973, 30 states prohibited abortion, four states permitted it outright, 16 permitted it under narrow circumstances, and all states imposed some regulations upon it; and the feds had no laws governing it.

From all of this, Justice Alito and the four other justices in the tentative majority concluded abortion is an issue for the states and not the feds.

There are other problems with Roe that the Alito opinion recognized. Roe's reasoning did not rely on precedent, science or history. No less an abortion proponent than the late Justice Ruth Bader Ginsburg lamented that the rationale in Roe was made up out of thin air by its author, Justice Harry Blackmun.


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