Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, August 29, 2012

Fragoso on "Judicial Conservatism" and Roe

My former student, Michael Fragoso, has the first of a two-part essay up at Public Discourse, explaining (among other things) why it is a mistake to say, as some do, that (something like) "because Republican judges helped to give us Roe v. Wade and Casey, it doesn't really make a difference, for purposes of securing a more just and constitutionally sound abortion-law regime, which party is in charge of nominating and confirming judges."  Part Two of the essay will run tomorrow . . .


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I think it is fair to say that it is a mistake to argue that "that it is anachronistic to blame Roe on Republican judicial policies." However, I'm not yet convinced to see it as a mistake to blame PP v. Casey on Republican judicial policies and strategy. I guess that's what the next essay will be all about.

This second issue of blaming Casey on Republican judicial policies will be a tougher argument to make, particularly because of the "libertarian" element of what has become Republican jurisprudence of which Justice Kennedy is a paragon (See Casey and Lawrence, see also, Heller and the Obamacare concurrence for a generally 'libertarian' flavor of Republican jurisprudence).

Posted by: CK | Aug 29, 2012 10:48:44 AM

Here's a perspective on pro-life causes in the legislative process (note that the Catholic Bishops are an exception):

""Party leaders don’t care about religion and they don’t respect the religious leaders they con into supporting them. I know this. Let me repeat that: I know it. I’ve seen heads of denominations go in to talk to legislative leaders. These preachers are all puffed up and sure of themselves when they walk in. They are certain that these men who they got elected and who promised them, gave them their word, that they would be for something like, say, pro life legislation, just don’t understand what they are doing when they are killing this legislation. These religious leaders are sure they can set things right. I’ve had them tell me so in just those words.

"“I’m going to talk to him and set things right,” they say. They are so sure, so certain of themselves and their relationship with these powerful men.

"Then, I’ve seen them come back out of those meetings on their knuckles and their knees, totally bamboozled and beaten.

"What’s even more disheartening is that I’ve never, with the single exception of the Catholic Bishops, seen even one of these religious leaders stand back up like men and go to war with the legislative leader. They smarm around to me and tell me things like “I’ve got to maintain contact with the Speaker,” or “I don’t want to lose access.” One of them even told me, “He lets me have his personal cell phone number.”"

Posted by: CK | Aug 29, 2012 2:10:21 PM

Well, I've read both installments now. I am not generally moved by pieces that involve broad-brush, sweeping, confident statements involving 40 or 50 years of both political and legal development, regardless of the political orientation behind them. And I do think Mr. Fragoso engages in a behavior that is common to such pieces: mixing and matching a cynical or realist approach to the law and judicial politics with an apparent allegiance to non-realist principles, so that either realism or principle can be marshaled as the argument demands. Again, this is hardly uncommon. But he does a fine job and his writing is lovely. I certainly appreciate his admission, as I read the pieces, that the relationship between judicial conservatism and the culture of life is essentially adventitious, or a matter of political strategy, rather than based on any deep principled connection between the two.

Posted by: Paul Horwitz | Aug 30, 2012 8:43:30 AM

"The fact is that the Republican Party’s commitment to judicial conservatism over the past thirty years has, as a matter of principle, favored and will continue to favor the pro-life movement."

Somebody help me reconcile the above statement from Mr. Fragoso with the following recent statement from Mitt Romney:

"My position has been clear throughout this campaign," Romney said. "I'm in favor of abortion being legal in the case of rape and incest, and the health and life of the mother."


Is this statement from Romney essentially the holding of Roe v. Wade? Let's not quibble over the past 30 years, but how does Romney's statement continue to favor a pro-life movement?

Posted by: CK | Aug 30, 2012 9:32:22 AM

CK -- my understanding is that Romney has said that he meant "life" (I could be wrong), and that -- in any event -- he certainly understands "health" more narrowly than the Roe / Doe regime does.

Posted by: Rick Garnett | Aug 30, 2012 11:53:13 AM

Entropy asks interesting questions about Romney's exceptions:

"What does a law look like that only allows abortion for rape, incest or the life of the mother?

"Incest or the life of the mother can be confirmed by doctors but who confirms that the baby is the result of rape? Does the rape victim have to bring a positive rape kit into the abortion clinic? The conviction of the rapist? The word of the mother?

"I'm not trying to be insensitive but I'm sure that I'm failing at that. It just seems like either it's ok to have abortions or it's not. And if it's not but we allow it in terrible situations, then it seems the victim will have also the burden of proof as well.

"Another violation."


Posted by: CK | Aug 30, 2012 4:59:12 PM