Skip to comments.Kavanaugh 2017: Roe Was Part of a Tide of “Freewheeling Judicial Creation Of Unenumerated Rights”
Posted on 07/12/2018 1:29:55 PM PDT by SeekAndFind
I think it’s fair to read this passage from a speech delivered last year to AEI as, shall we say, “Roe-skeptical.” Although (a) naturally it’s much more circumspect than what you might hear from Mike Lee on the Senate floor, befitting the different roles of a federal appellate judge and a U.S. senator, and (b) it’s not so overtly “Roe-skeptical” as to give us a strong clue about whether Kavanaugh would overturn the decision. Is it enough for him that “the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nations history and tradition” was stemmed by the Rehnquist Court, with no need to upend stare decisis in order to revisit the worst judicial excesses before that?
Or does Roe need to die?
From his speech:
In later cases, Rehnquist reiterated his view that unenumerated rights could be recognized by the courts only if the asserted right was rooted in the nations history and tradition. The 1997 case of Washington v. Glucksberg involved an asserted right to assisted suicide. For a five-to-four majority this time, Rehnquist wrote the opinion for the Court saying that the unenumerated rights and liberties protected by the due process clause are those rights that are deeply rooted in the nations history and tradition. And he rejected the claim that assisted suicide qualified as such a fundamental right.
Of course, even a first-year law student could tell you that the Glucksberg approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe v. Wade in 1973as well as the 1992 decision reaffirming Roe, known as Planned Parenthood v. Casey.
What to make of that? In this context, it is fair to say that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either in Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare decisis. But he was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nations history and tradition. The Glucksberg case stands to this day as an important precedent, limiting the Courts role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy.
The quote being circulated today by lefties is Kavanaugh’s claim that Roe was part of a trend towards “freewheeling judicial creation of unenumerated rights,” but that’s the least controversial part of that passage. Of course it involved judicial creation of unenumerated rights. Pop quiz: Where does the following excerpt come from?
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects…
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which, by tradition, courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule.
As my pal Karl pointed out earlier today on Twitter, that’s Sandra Day O’Connor writing for a majority in Planned Parenthood v. Casey, the decision that upheld Roe. She’s telling you as plainly as she can there that, although legal and cultural traditions are useful to judges in guiding their thinking of unwritten constitutional rights, in the end it’s their own “reasoned judgment” that decides the matter. “Judicial creation of unenumerated rights,” just like Kavanaugh said, by the Casey majority’s own admission. At worst, progressives might argue that unenumerated rights aren’t “created,” they’re recognized. They belong to the people as a matter of what’s properly due in a free society, whether or not Brett Kavanaugh feels like admitting it. But in our system, in which the Constitution is what the Supreme Court says it is, that’s a philosophical distinction without a practical difference. You can claim that the right to kill your fetus is fundamental and owed to you whether or not five justices disagree, but if five justices do disagree then you’re not going to exercise that alleged right without sanction.
What makes the passage “Roe-skeptical” isn’t his claim that the Court “created” the right to abortion, it’s his cautiously pejorative references to that process. It wasn’t just that judges created a right in Roe, Kavanaugh says, it was that it was part of a “freewheeling” judicial trend at the time. It’s hard to imagine a judge, particularly a conservative judge, ever using “freewheeling” as a compliment to describe a turn in jurisprudence. More significantly, Kavanaugh doesn’t merely say that Roe involved judges creating an unenumerated right; he says they created a right that was “not rooted in the nations history and tradition.” That is, he’s contrasting the ruling in Glucksberg, with which he obviously agrees, with the ruling in Roe, going so far as to suggest that it’s impossible to reconcile the two. His view seems to be a la Rehnquist that judges should recognize an unenumerated right only if it’s “rooted in the nations history and tradition,” exactly the sort of limitation that O’Connor sidestepped in Casey. It’s perfectly fair, I think, for opponents to read that as evidence that Kavanaugh thinks Roe was wrongly decided; it’s not fair to treat it as proof that he’d overturn 45 years of precedent to reverse it.
But it’d be silly to object too strenuously to them doing that, no? Trump has vowed to appoint judges who’ll overturn Roe; Mike Pence said on TV two days ago that he hopes the Court will overturn Roe; movement conservatives who were cheering on Barrett not only hope but expect that Kavanaugh will overturn Roe. Turning around and getting huffy at liberals for daring to glean from the AEI speech that he really might overturn Roe would be bizarre. I understand that it’s all part of the confirmation-hearing tapdance, in which we must protect the nominee’s strategic ambiguity on abortion at all costs, but it’s a farce. Of course Kavanaugh might overturn Roe. It’s not crazy to treat the AEI speech as evidence, albeit not proof, of it.
If you want the lefty take on his speech, by the way, read Jay Michaelson at the Daily Beast. (He was last seen wringing his hands over Leonard Leo’s involvement in a supposedly shadowy cabal — the Knights of Malta, which will make Catholic readers laugh.) He comes to the same conclusion I do: Kavanaugh clearly thinks Roe was wrongly decided, although less clearly believes it should be scrapped. But he takes the same glib approach to the question of whether the right to abortion is “rooted in the nations history and tradition” as most progressives do, insisting that there is in fact a tradition of the state not being allowed to meddle with one’s bodily autonomy via regulation. True, but the singular fact about abortion is that there isn’t one body involved; the state isn’t attempting to prevent you from having your tonsils removed, as much as Michaelson would like to analogize a fetus to body parts and internal organs. He’s begging the question of whether a baby in gestation constitutes a life whose protection justifies state interference in a way that wouldn’t be justified in any other biological matter.
I know all this stuff is going to come up regardless but i wouldn’t mind if his views on this issue were kept more discreet by conservatives so that the libs can’t abuse it for leverage. I don’t think it’s in our interest for him to be so easily pinned down on this issue by the left.
“I dont think its in our interest for him to be so easily pinned down on this issue by the left.”
Nope. All cards on the table. The Socialists ARE going to crucify him no matter what. And if they succeed? November 6, 2018 will be all the sweeter, and PDJT will put in another stellar pick from his list.
Don’t panic. Dirty little secret? We HAVE the votes to confirm him no matter how loudly The Socialist Democrat Party wants to scream.
Send abortion BACK to the states. Let the lefties on either coast kill their children while The Heartland regroups and repopulates. We have nearly 40 Republican Governors in our states, now. Strike while the iron is hot! ;)
<>(In Glucksburg) Rehnquist wrote the opinion for the Court saying that the unenumerated rights and liberties protected by the due process clause are those rights that are deeply rooted in the nations history and tradition.<>
That strikes me as a reasonable standard. What is not reasonable is the welling up of rights from judges. When the sovereign people of a state amend their Constitution, as California did against homosexual marriage, THAT is the proper fount of rights. And a proscription of homo-marriage is consistent with out history and traditions.
excellent post. That is why I come here. I also read the speech.Roe was wrongly decided. There is no right to kill one’s baby in the constitution. It is now clear to me that Kavanaugh will obliterate Roe using the stare dicisis of Washington v. Glucksberg. We must observe precedence!! There it is. “he( Rehnquist) was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nations history and tradition”. Roe was not so “rooted” . Thank you God. We will halt this national sin.
Many legal experts if they are honest will admit RVW was bad law and not supported by the constitution. I have even heard pro aborts admit it.
That said Kavanaugh seemed to go down the twisted path to say Obongo care was constitutional.
The Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
It is Federal powers, NOT our rights, that are specifically enumerated.
The problem is that the Federal government is given no authority one way or nother over abortion (which was illegal when the Constitution was written.)
One can take a states-rights position on the matter, following the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Or, one can take the view that teh constitution actively prohibits abortion, based on the Fifth and Fourteenth Amendments:
Fifth Amendment (relevant portion):
"No person shall ... be deprived of life, liberty, or property, without due process of law"
Fourteenth Amendment (relevant portion):
"nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
So ne can argue that the right to life is specifically protected. But the Ninth Amendment guarantees and protects unenumerated rights. So this is the wrong basis on which to attack Roe v. Wade.
I would like Kavanaugh to state if he felt that:
1. Rehnquist should have been successful in opposing Roe and Casey OR
2. Roe, though wrongly decided, still should have been affirmed by Casey based on stare decisis
That is a critical question.
Senators need to ask that and Kavanaugh needs to give the right answer.
Abortion being unenumerated does not make it a right.
What objection do you have to his position on abortion decisions being clarified?
Do you want to be uncertain about his position on the Second Amendment?
for the curious:
What I’m saying is that Kavanaugh is making the wrong argument. There are unenumerated rights, prote cted by the Ninth Amendment, so saying it’s creating unenumerated rights is a poor constitutional argument.
As I outlined in my post, there are plenty of other constitutional grounds that invalidate Roe. But this is not the basis on which to attack it.
“I know all this stuff is going to come up regardless but i wouldnt mind if his views on this issue were kept more discreet by conservatives so that the libs cant abuse it for leverage.”
His views will be researched by the NY Times, Washington Post and others.
They will become known.
I’m one for facing things head on.
If I was in his shoes, I would have to say:
There is no natural or Constitutional right to murder your own baby.
However, if the State of New York or the State of Oregon allows abortion, then you may have your baby murdered there.
Nothing in the Constitution stops any woman from having an abortion legal under state law. Right?
[I’m sure he’d be more polite.]
“No person shall ... be deprived of life, liberty, or property, without due process of law”
Does that give the KKK the right to kill black folks with impunity? No.
Does that give Ms. Pregnant the right to kill her and her boyfriend’s baby with impunity? No.
That is so true. Justices had gotten drunk with power.
BUMP for later
His first sentence assessment: He is not wrong.
Exactly what I was saying.
If you read through the Federalist Papers, and Letters from a Federal Farmer (sometimes known as the "anti-federalists"), you'll see that there was a dialogue going on in the public over whether or not to ratify the Constitution. One of the major arguments of the anti-federalists was, that the act of actually listing out some limited number of rights that were specificially beyond the government's ability to restrict was that it would then leave open the argument that only those rights specified were actually protected. This is the exact argument we're seeing above.
I find the very idea that there is no human right to privacy to be laughable in the extreme, especially when you consider all the other rights that directly affect it that are specifically called out. The 4th and 5th are cited most often in this realm, but even the 3rd (the forgotten amendment) speaks to it directly. How much privacy can one have in a home if you have an agent of the government quartered in it?
I realize that the entire concept of 'unenumerated rights' can be extended to insane extremes, like a 'right' to a TV, or a sex change operation, but the fact is, that just because something wasn't specifically spelled out on vellum doesn't mean we don't retain it because we are human beings.
Take a look at Baker v Carr, decided in 1962.
I think a rather good argument might be made that decision was the point after which the federal judiciary went to h311. As a later reply indicates, perhaps Roe v Wade represents the crest of that wave.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.