Published just after the Kavanaugh hearings, David Kaplan’s book, The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution, is the newest criticism of the Rehnquist and Roberts Courts by a liberal legal commentator. His major theme is that the Supreme Court has become too powerful. While conservatives will dispute some of Kaplan’s […]
A Draft Opinion Overruling Roe v. Wade
Roe v. Wade has been subject to substantial judicial and scholarly criticism over the past forty-five years, but without an attempt specifically to explore how to overrule it in a majority opinion. This Article attempts to remedy that by drafting a model opinion that could be used to overrule Roe. The predicate for this Article’s […]
The Supreme Court Sows Confusion about Abortion Law
Clarifying and settling the law are among the most important responsibilities of the Supreme Court in the American constitutional system, and something the Court is frequently called on to do. “Ultimately it is this Court’s responsibility to clarify the scope of its own holdings,” as Justice William Brennan said more than a quarter of a century ago. It […]
Like 21 States, Congress should pass a five-month limit on abortion
In 2007, for the first time since 1973, five Supreme Court justices expressed grave concern with late-term abortions, in a case called Gonzales v. Carhart, and upheld the federal Partial-Birth Abortion Ban Act. Numerous lawyers and elected officials read the Supreme Court’s decision and thought the Justices were serious. So, since then, 21 states have enacted a prohibition […]
‘Constantly approximated:’ Aim for achievable changes in law, not ideal defeats
Part of the problem that Republicans are having in Congress is that too many of them seem to expect perfect or permanent laws. Virtually all legislation is provisional. Nations live with provisional governments and provisional treaties. They deal with current conditions. They are temporary, with the expectation that they will change. Some laws should change when conditions do. This is […]
Chile legalizes abortion, but rightly rejects Roe v. Wade logic
This summer, Chile legalized abortion for the first time since 1989. The legislation, slated to take effect in January 2018, legalizes abortion in cases of “risk to the mother’s life,” “fetal malformation incompatible with life,” and rape. The scope of these conditions — how they will be applied — remains to be seen. A case testing the […]
