The reaction to the Supreme Court’s reversal of Roe v. Wade in Dobbs v. Jackson Women’s Health has been predictably vitriolic and often full of distortions. The Justices didn’t ban abortion; they said there is no constitutional right to abortion and left it to the states to decide. The majority also did not set up other rights to disappear; they explicitly said abortion is unique.
Perhaps the most unfortunate claim is that the Justices in the Dobbs majority lied during confirmation hearings. The charge is that they suggested that Roe v. Wade was a precedent that couldn’t be overturned. Coaxed on the point on “Meet the Press” on Sunday, Rep.
Alexandria Ocasio-Cortez
said this is grounds for impeachment, and don’t be surprised if other Democrats pick up that cudgel.
Sens.
Susan Collins
and
Joe Manchin
said Friday they feel Justices
Brett Kavanaugh
and
Neil Gorsuch
deceived them on the precedent point in testimony and in their private meetings with the Justices. We weren’t in those meetings, but we’d be stunned if either Justice came close to making a pledge about Roe.
The reason is that the first rule of judging is that you can’t pre-judge a case. Judges are limited under Article III of the Constitution to hearing cases and controversies, and that means ruling on facts and law that are specific to those cases.
No judge can know what those facts might be in advance of a case, and judges owe it to the parties to consider those facts impartially. A judge who can’t be impartial, or who has already reached a conclusion or has a bias about a case, is obliged to recuse himself. This is judicial ethics 101.
An authority on this point is no less than the late progressive Justice
Ruth Bader Ginsburg,
as she explained in 1993. “It would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide,” she said. “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”
Every Supreme Court nominee since has followed that Ginsburg…
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