As we observe the sad forty-second anniversary of Roe v. Wade, the Supreme Court decision that overturned all state laws banning abortions and effectively served as a judicial death warrant for tens of millions of innocents, I think it is appropriate to pay tribute to the two dissenting Justices, Byron White, a Democrat, and William Rehnquist, a Republican. Here are the texts of their dissents:
MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting.
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical adviser willing to undertake the procedure.
The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.
With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
With the announced retirement of Supreme Court Justice David Souter President Obama wasted no time in addressing the issue of what he’s looking for to fill this vacancy. In so many words he clearly stated his desire for an activist judge with an eye towards reengineering America [emphasis and comments mine].
“It is also about how our laws affect the daily realities of people’s lives [meaning he wants a Justice who holds fast to the Living Constitution Theory,ie, an activist judge finding invisible law where none existed], whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”
The following excerpt clearly reveals President Obama’s contempt for legislative history in effect eliminating a potential nominee that adheres to the theory of original intent.
“I will seek someone who understands that justice is not about some abstract legal theory or footnote in a casebook.”
One thing is for sure, it will be an extremist liberal and pro-abortion nominee.
The Cranky Conservative has two first rate posts on his site here on what he regards to be the ten worst US Supreme Court decisions of all time. Having read hundreds of Supreme Court decisions, I have to salute Cranky for narrowing them down to ten. So many appalling decisions to choose from!