The Omega Letter Intelligence Digest
Vol: 48 Issue: 5 - Monday, September 05, 2005
The 'Lone Ranger' Rides Into the Sunset.
Supreme Court Chief Justice William Rehnquist went to his reward on Saturday night when he died of thyroid cancer. At the time of his death, he had served on the Supreme Court for thirty-three years, ascending to the nation's highest court in 1971 at the tender age of forty-seven.
Rehnquist was known in his early days on the bench as the "Lone Ranger" for his many dissents on a then-liberal court that left him ideologically isolated on the far right.
(I discovered an interesting bit of trivia when researching the late Chief Justice. When he attended Stanford University in the early 1950's he briefly dated another law student named Sandra Day O'Connor).
Rehnquist wrote one of the two dissenting opinions in the 1973 Roe v. Wade case that struck down abortion laws in all fifty states. Rehnquist argued against the majority, noting that the newly-discovered Constitutional right to abortion was rooted in the discovery of a non-existent Constitutional 'right to privacy.'
In their dissent, Rehnquist and Justice Byron White blistered the majority decision:
“[t]he Court for the most part sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the pregnant woman more than the life or the potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.”
The existing Court invented the right to privacy in a ruling that explicitly acknowledged the 'right' to privacy is not among those guaranteed by the Constitution.
Writing for the seven-justice majority at the time was Justice William O. Douglas, who argued that, since, "We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system," the Framers must have somehow forgot to include it, so the Warren Court tacked it on in order to justify the discovery of the 'right' to abortion.
Assessment:
With the passing of the 'Lone Ranger', President Bush has two vacancies to fill. The last time there were two vacancies on the court was in 1971, when Rehnquist himself was appointed to one of the openings created by the retirements of justices Hugo Black and John Marshall Harlan.
President Bush had already nominated John Roberts to succeed Sandra Day O'Connor. On the news of Rehnquist's death, Bush re-nominated Roberts to replace Rehnquist as chief justice.
The confirmation battle is expected to be messy, but Roberts is expected to ultimately be confirmed. It isn't the Rehnquist seat that has the ACLU acting like Dracula before a crucifix, despite all the partisan hyperbole. Rehnquist was ALREADY a staunch conservative and champion of state's rights and limited federalism.
Roberts, who in another of a seemingly unending series of coincidences involving the late Chief Justice -- clerked for Rehnquist early in his law career, represents no significant change in the Court's conservative majority.
On the other hand, Sandra Day O'Connor's seat does. O'Connor was what was known as a 'swing vote' -- meaning she voted based on her moods, rather than her legal philosophy.
For some reason, that is widely admired among liberals who are demanding Bush replace O'Connor with a someone 'in the tradition of Justice O'Connor' -- someone who stands for nothing and will therefore fall for anything.
Here is how the rabidly left-leaning San Jose Mercury News explained it: "A bloc of cautious conservatives, led by Justice Sandra Day O'Connor, tempered, if not sometimes thwarted, the Rehnquist conservatives' efforts to return to a pre-New Deal era of states' rights and an emasculated Congress. They preserved Roe vs. Wade, affirmative action, the ban on school prayer and fundamental labor, health and environmental protections -- often on 5-4 votes."
'Cautious conservatives?' The 'New Deal era of state's rights'? Why not the 'Civil War' era of state's rights? Or, dare I say it? -- the CONSTITUTIONAL era of state's rights! This is one of those 'don't confuse me with facts' editorials.
Abortion 'rights' is an example of the 'tyranny of the majority' warned of by the Founding Fathers. Unrestricted abortion has been the law of the land for more than three decades during the mainly Democratic domination of both Houses of Congress.
Even after losing the majority, they have consistently opposed pro-life legislation by using whatever tactics necessary, from outright lies to the threat of filibuster.
Democratic appointees to the Supreme Court in 1973 constituted a 7-2 majority when Roe v. Wade was decided. To the Democrats, that still equates to majority support for abortion. Things have changed.
According to a June, 2000 poll conducted by the ultra-liberal Los Angeles Times, fifty-seven percent of respondents said they believed that abortion is murder. Fifty-seven percent! Only 43% of respondents in that poll supported the Roe v. Wade decision.
Princeton Survey Research Associates conducted a telephone survey among women for the pro-abortion Center for Gender Equality in 1998. Fifty-three percent of women according to that poll OPPOSE abortion.
A CBS poll conducted in July 2003 showed that fully 62% of Americans either oppose abortion altogether or believe it should be strictly limited.
A December 2003 poll conducted by Zogby asked the question; "Do you agree with the statement; "Abortion destroys a human life and is manslaughter?"
Sixty-two percent said yes. Fifty-five percent of Americans agreed with the statement; "Life begins at conception."
In light of this new reality, (as yet undiscovered by the Left), the confirmation battles will be fascinating.
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