An article in today’s Wall Street Journal is really burning my biscuits. The author, Robert George, claims that if the Supreme Court decides to hear an appeal of California’s Proposition 8 (which outlawed same sex marriage), the justices would be “repeating the mistakes of Roe.”
It would be disastrous for the justices to do so. They would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights.
Even many supporters of legal abortion now consider Roe a mistake. Lacking any basis in the text, logic or original understanding of the Constitution, the decision became a symbol of the judicial usurpation of authority vested in the people and their representatives. It sent the message that judges need not be impartial umpires—as both John Roberts and Sonia Sotomayor say they should be—but that judges can impose their policy preferences under the pretext of enforcing constitutional guarantees. [Read more...]