weighing in, God help me

Weighing in, yes, but doing my usual trick of trying to separate matters that get entangled in The Discourse. Regarding yesterday’s SCOTUS decision, let’s keep these five questions distinct:

1) All those decades ago, was Roe v. Wade rightly decided? I agree with Akhil Reed Amar — a pro-choice professor at Yale Law School — that it was not. Strictly in terms of legal reasoning, it was a remarkably bad decision.

2) Should the current SCOTUS have overturned it? That’s actually a tougher question, because of a general sense that the longer a decision has stood the more powerful the voice of stare decisis becomes. It would have been far less socially disruptive if Roe had been overturned in the Reagan years. But it is so indefensible a ruling that I can’t justify keeping it on the books.

3) Was it overturned on proper grounds? Legal scholars will be debating that for a long time, but for what it’s worth, Alito’s opinion does not strike me as an especially cogent one. It’s better-argued than Roe was, but that’s an exceptionally low bar.

4) This is not something widely discussed, especially right now, but: Has it been wise for the pro-life movement to focus so much of their energies, for the past half-century, on the overturning of Roe? I think not, and I have always thought not. I believe that it would have been a better strategy to focus on non-legal means of reducing or eliminating abortion. The end of Roe, after all, does not mean the end of abortion in America, and may make things harder for the pro-life movement in pro-abortion states. (Related: I don’t know if Elizabeth Bruenig would still endorse what she wrote several years ago about being genuinely pro-life, but I still endorse it. See also my old manifesto on The Gospel of Life.)

5) Finally: Is abortion a good or an evil? Note how distinct this core question is from the legal disputes: Roe could have been wrongly decided as a matter of Constitutional law even if abortion is salutary and necessary; Roe could have been rightly decided even if abortion is a great evil. One of the more frustrating elements of this particular battle in the culture war is the difficulty most people have in distinguishing “This is an outcome I like [or hate]” from “This is a good [or bad] decision.” (Indeed, the inability of the Justices to make this distinction in 1973 is precisely why the legal reasoning in Roe is so inept.) All that said: on this most essential matter, I agree with Ross Douthat.

UPDATE: Please read Leah Libresco Sargeant.

UPDATE 2: This should not need to be said, but: There is no correlation between the popularity of a SCOTUS decision and its correctness. Texas v. Johnson was wildly unpopular but correct; Korematsu v. United States was very popular indeed but possibly the worst decision ever reached by the supreme Court; Brown v. Board of Education was, like yesterday’s decision, deeply controversial — cheered by many, loathed by many — and was absolutely right. The idea that the popularity or unpopularity of a decision determines the Court’s “legitimacy” or lack thereof is a pernicious one. When members of the Court think that way, we get decisions like Korematsu.