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Dred Scott, abortion, and originalism


Paperwight and Mark Kleiman are, of course, correct: the President’s bizarre invocation of Dred Scott is about abortion. Lest you think this is a reach, let’s turn it over to Nino, in his dissent in Stenberg v. Carhart (the case that struck down Nebraska’s D&E abortion statute for not having a health exemption):

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child–one cannot even accurately say an entirely unborn human child–proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.

The idea here, in other words, is not just to link Dred Scott with Roe in terms of jurisprudence, but to advance the even more appalling trope that reproductive freedom is like slavery. (It’s notable that Rehnquist, opposed to the abortion cases but apparently indifferent about abortion as a moral issue, didn’t join Scalia’s opinion. Although perhaps the old polling booth goon just thought Scalia was being unfair to Korematsu and Dred Scott.)

So, Bush was being clever, in an exceptionally offensive kind of way. But here’s a question: what was the point? Everybody who gets this Federalist Society in-joke knows where Bush stands on abortion, and will vote for him if abortion is salient to them. To voters unaware of this, all that came through was Bush babbling about an ancient case he obviously didn’t understand. Seems more like too-clever-by half to me, and reinforces my belief that Karl Rove–when not engaging in outright scumbag hatchet-work–is a largely ineffectual and overrated strategist.

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