Poor, Poor Baby

A couple quick points in Ward Report Don’s reporting that he’s sick of defending other people’s rights:

• Defending the outcome in Roe does not in any way require a defense of Harry Blackmun’s particular opinion, which is an accident of history. Burger probably assigned him the opinion because he was shakier about the outcome than anyone else in the majority coalition, and had Douglas been able to assign the opinion he probably would have done the same thing, to lock in the vote. As William Rehnquist noted, the outcome always matters more than the reasoning, and few Supreme Court opinions have the clear reasoning and elegant prose Holmes’ famous dissents; they’re far more often cobbled together by clearks and sometimes fractious coalitions of judges. Anyway, the fact that Blackmun did not effectively locate Roe in the Court’s precedents doesn’t mean it can’t be done–cf. Douglas in Doe v. Bolton and (especially) Stevens’ detailed, careful rebuttal of White in Thornburgh. It just means that Blackmun made a bad argument. Roe, while certainly not required by the court’s precedents, is a perfectly plausible application of them. There’s no reason whatsoever to “wink” in order to defend Roe.

• If you believe that developing tests to apply constitutional rights is inherently illegitimate, fine, although I think this is silly (and, indeed, would pretty much make constitutional jurisprudence impossible.) But let’s be clear that this means that you also have to abandon–just for starters–Miranda and most of the Court’s church/state jurisprudence.

• I’m just guessing here, but I’m going to go out on a limb and suggest that if the question was whether Griswold applied to laws that required men be chosen at random to get vasectomies as a method of population control, somehow Don would be less wary about defending “judicial activism.” Have you ever noticed how an extremely high percentage of “who gives a shit about Roe anyway (but I’m pro-choice–really!)” arguments come from men living in large urban areas? Strange; I wonder what might account for that.

Via Rox, whose post you should read.