AOC's Roe v. Wade grandstanding has gone too far

28 June 2022

10:31 PM

28 June 2022

10:31 PM

If you’ve bothered to actually read the Supreme Court’s opinion on Roe v. Wade – rather than the endless social media memes – you’ll know that America’s chief justices have not decided they can rule over women’s bodies. The court has rather declared that the issue is not a matter for the court – that abortion should be returned to the nation’s elected representatives.

Funny thing, though: the nation’s elected representatives, at least the Democratic ones who most vocally support abortion, don’t seem to want that power – and they are furious with the Justices who have handed it back to them.

Alexandria Ocasio-Cortez, the Democratic congresswoman who urged pro-abortion activists to take to the streets after last week’s ruling, has now called for the impeachment of two Supreme Court Justices, Neil Gorsuch and Brett Kavanaugh, on the grounds that both men ‘lied’ in their confirmation hearings on the matter of Roe v. Wade.

‘There must be consequences for such a deeply destabilising action and hostile takeover of our democratic institutions,’ says Ocasio-Cortez, showing off her talent for hyperbole.

AOC was following up on the statements of Senator Susan Collins, a Republican Senator for Maine, and Joe Manchin, a Democratic Senator for West Virginia. They say that both Gorsuch and Kavanaugh deceived in the hearings by suggesting they believed that the Roe v. Wade was ‘settled legal precedent’ – and therefore should not be overturned under the doctrine of Stare Decisis, the idea that courts will adhere to precedent in making their decisions

It’s interesting that AOC, as she is known, is not going after the last Donald Trump-nominated Supreme Court Justice, Amy Coney Barrett, who was also pressured in her hearings to say she regarded Roe as settled law. That’s partly because Coney Barrett refused to say that she believed Roe qualified as ‘super precedent’ in her hearings, during a testy exchange with Senator Amy Klobuchar. It’s also because ACB is a woman who adopted two Haitian children and has a son with special needs. This makes it harder to attack her by saying she simply wants to control women’s bodies. (Another inconvenient truth, by the way, is that quite a few men claim to be pro-choice because abortion makes it easier for them to use women’s bodies, but that’s another matter.)

But even when it comes to Gorsuch and Kavanaugh, the idea that they deceived the Senate by promising they would not overturn Roe v. Wade is a nonsense. It’s possible that the two men, in private meetings, misled the senators by assuring them without qualification that they would not overturn Roe, but that seems unlikely. As highly-experienced legal men, both men would know that the whole point of being a judge is that you cannot pre-judge any particular case.

Moreover, in the public hearings, Gorsuch and Kavanaugh did not, in fact, argue that they would regard Roe as a settled matter. Gorsuch told the hearings:

If I were to start telling you which are my favourite precedents or which are my least favourite precedents, or view it in that fashion, I would be tipping my hand and suggesting to litigants I already made up my mind about their cases. That’s not a fair judge.

Kavanaugh was arguably more cunningly Jesuitical on the matter. He told the hearings:

Roe v Wade is an important precedent of the Supreme Court. It has been reaffirmed many times. It was reaffirmed in Planned Parenthood v. Casey in 1992… So that precedent on precedent is quite important as you think about stare decisis in this context.

All he said, then, is that he would regard precedent as an important consideration in any case concerning Roe v. Wade. In other words, he did not lie.

Even if the Democrats were able to impeach Gorsuch and Kavanaugh through the House of Representatives, it would not mean they could remove them. Impeachment requires a two-thirds super majority in the Senate, which the Democrats do not have.

So, by calling for impeachment, AOC and others are simply grandstanding for the media. No surprise, there: that’s what politicians do. But it is interesting how desperate America’s elected representatives are to avoid tackling the issue through the legislature – to try to make the law themselves, which is what they have been democratically chosen to do.

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