A Bad Sign

I really hope that this article doesn’t reflect the kind of reporting the NYT is going to do on the upcoming SCOTUS Battle Royale:

Judge Luttig (pronounced LOO-tig) is renowned for being sought out by Virginia officials when they wanted a sympathetic judge to issue an emergency order blocking a lower court ruling that invalidated the state’s ban on what it called partial-birth abortion. He granted the order in 1998 and then wrote a full opinion upholding the law.

But when the Supreme Court rejected his analysis and the case came his way again, he acknowledged his obligation to reverse course.

“Our responsibility is to faithfully follow its opinions,” he wrote, adding that the Supreme Court’s ruling on abortion deserved a special respect from lower court judges.

That approach could be interpreted as similar to Justice O’Connor’s in declining to overturn precedents that have been upheld by the Supreme Court over the years.

No no no no no no no no. Many of you will have already seen the obvious error here: Luttig, as a circuit court judge, is bound to follow Supreme Court precedents. It isn’t a matter of discretion; if he didn’t do this he’s acting lawlessly. The Supreme Court does, on the other hand, have discretion with respect to its own precedents. Whether or not one agrees with him on the merits, Scalia is not subverting the law when he votes to overturn Roe. Lower court judges, though, are bound by Roe whether they agree with it or not. Therefore, the fact that Luttig was willing to follow Supreme Court abortion precedents tells us absolutely nothing about whether he would vote to overturn Roe as a Supreme Court justice. Similarly, we cannot infer from the fact that Alberto Gonzales was willing to apply Texas abortion statutes as they were written that he therefore supports Roe, as many wingnuts seem to believe.

I would really like to think that at least one editor at the Times would understand this elementary fact, but I guess not.