United States Supreme Court: restraint vs. activism.

In nominating Samuel Alito to the United States Supreme Court, President George Bush lauded him as a "scholarly, fair-minded and principled" judge who has "a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people."

Alito also happens to be a faithful Catholic who understands that all human life is sacred, from conception to natural death. How then as a judge on the Third Circuit Court of Appeals, could he have written a concurring opinion in Planned Parenthood v. Farmer (2000) that struck down a New Jersey law banning partial-birth abortions?

There is a good answer to that question: in Farmer, Alito did not in any way sanction the horrors of partial-birth abortions. He simply noted that the United States Supreme Court had handed down a definitive ruling just a few weeks earlier in Stenberg v. Carhart that struck down a Nevada law banning partial birth abortions. Alito pointed out: "Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent."

As a statement of the responsibility of a lower court, Alito was entirely correct. But sooner or later the issue of partial-birth abortion will come back before the United States Supreme Court. As a member of that Court, would he still vote to uphold the Stenberg precedent?

That is doubtful. Unlike lower courts, the United States Supreme Court can, and often does, overturn its own precedents. For example, in Lawrence v. Texas (2003), the Court ruled that a Texas law banning consensual sex between same-sex adults was unconstitutional despite having held just 17 years earlier in Bowers v. Hardwick (1986) that a similar Georgia law was entirely compatible with the United States Constitution as written and originally understood.

In Lawrence, Justices Antonin Scalia and Clarence Thomas--both Catholics--dissented. As practitioners of judicial restraint, they uphold the original understanding of the laws and the Constitution. In contrast, the judicial activists on the Court routinely legislate from the bench by changing the law and the Constitution through arbitrary interpretations that reflect their personal opinions.

Alito and the new Chief Justice John Roberts are also advocates of judicial restraint. While they have stopped short of describing themselves as outright originalists, it is reasonable to expect that they, like Scalia and Thomas, would vote to overturn wrongly decided precedents like Lawrence and Stenberg that are plainly incompatible with the original understanding of the Constitution.

What, though, about Roe v. Wade (1973)? In this calamitous judgment, the United States Supreme Court struck down state laws restricting abortion on the patently absurd ground that a woman has a right to kill her unborn baby in the womb by virtue of the guarantees of "life, liberty and property" in the Fifth and Fourteenth Amendments to the United States Constitution. Can Alito and Roberts be relied upon to support the reversal of Roe as well?

Not necessarily. Some conservative legal scholars hold that the Supreme Court has upheld Roe so often over the past 20 years that this case has taken on the status of a "superprecedent" that can only be overturned by an amendment to the United States Constitution. Roberts was asked for his views on this theory during his confirmation hearings before the Senate Judiciary Committee. He declined to give a forthright answer. Alito will probably be no less reticent and for the same reason: it is improper for judicial nominees to indicate how they will vote on a specific issue that is likely to come before the Court.

Pro-lifers can only hope and pray that when restrained judges like Alito, Roberts, Scalia and Thomas are put to the test, they will forthrightly reject the superprecedent rationale for upholding unconstitutional rulings like Roe.

Meanwhile, there is no prospect that the Supreme Court of Canada will soon overturn its no less disastrous and unconstitutional ruling in R. v. Morgentaler (1988) that struck down the few remaining restrictions on abortion in Canadian law. It is a sad fact that among the judges on our top court, there is not a single practitioner of judicial restraint who respects either the sanctity of human life or the proper role of the judiciary in a constitutional democracy.

Rory Leishman is the author of the forthcoming (April 2006) book Against Judicial Activism: The Decline of Freedom and Democracy in Canada (McGill/Queens University Press, Montreal).