Not a Good Way to Defend Harriet

Hugh Hewitt, who has been one of the most ardent supporters of the Miers nomination, stated that he thinks Harriet Miers would probably end up being comparable to Potter Stewart. Patterico, in a terrific response, notes a response from the book The Brethren that illustrates the issue of judicial activism about as well as I've ever seen...

Here is the story of how Potter Stewart came to concur in Roe v. Wade, from the book The Brethren, at p. 196:

Stewart thought that abortion was one of those constitutional issues that the Court rarely handled well. Yet it was becoming too important to ignore. Abortion was a political issue. Women were coming into their own, as Stewart learned from his daughter Harriet, a strong, independent woman.

As Stewart saw it, abortion was becoming one reasonable solution to population control. Poor people, in particular, were consistently victims of archaic and artificially complicated laws. The public was ready for abortion reform.

Still, these were issues of the very sort that made Stewart uncomfortable. Precisely because of their political nature, the Court should avoid them. But [you knew there was a “but” coming, didn’t you? — Ed.] the state legislatures were always so far behind. Few seemed likely to amend their abortion laws. Much as Stewart disliked the Court’s being involved in this kind of controversy, this was perhaps an instance where it had to be involved.

So: Stewart recognized that this was a political issue. But he had an independent daughter who was teaching him about women’s lib, and the state legislatures were just moving too slow for his personal liking. So, in an act of pure judicial arrogance, Stewart joined the Court’s opinion in Roe v. Wade.

The passage quoted by Patterico frames the issue perfectly as conservatives see it.

Roe did not involve a Constitutional right to privacy -- it involved a policy choice made by 7 out of 9 men in black robes who simply took the power to make laws away from the state legislatures and assigned it themselves. What's more, at least one of them, based on this passage, recognized this to be true.

Quite simply, it's wonderful that Justice Stewart recognized that abortion laws might have a disproprtionate impact on poor women. But if he wanted to do something about it, he should have run for the state house in the states that he believed were behind the times in reforming their laws. Deciding to take the issue out of the realm of the legislature and declaring it off-limits is akin to despotism, not justice.

I don't know whether Harriet Miers will be another Potter Stewart. But I don't want to take that risk.