Cluelessness About the Court

MMFA catches the Wall Street Journal‘s editorial page claiming that “[I]t is the [Supreme] Court’s extremism that has blocked just about any regulation of abortion even up to the time of birth.” In addition to the problems identified by MMFA–namely, the fact that the Court in Webster and Casey upheld pretty much every state regulation of abortion except for spousal notification–there’s the little matter of Roe itself. According to the majority opinion, “[f]or the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” So, in other words, this is a flagrant lie.

But at least the WSJ keeps this stuff on its editorial page. The New York Times has decided to up the ante on its previous misunderstanding of the federal court system. Now, according to Todd Purdum, Luttig is more likely to uphold precedents if he gets appointed to the Supreme Court:

But even one of the conservative movement’s favorite candidates, Judge J. Michael Luttig of the Court of Appeals for the Fourth Circuit in Richmond, Va., agreed to invalidate a Virginia ban on a form of abortion that the law calls partial birth – a restriction he had previously upheld – after the Supreme Court struck down a similar law in Nebraska. As a member of the Supreme Court, would he feel even more bound by its precedents and traditions?

This is just unbelievable hackwork. Again, Luttig didn’t have a choice about upholding the Virgina law, unless he just wanted to nullify a decision by a higher court; this was not an act of discretion on Luttig’s part, and on the SCOTUS he would not be similarly bound. And it’s not just an innocent error. The idea here, of course, is to claim that the Scaliaesque Luttig may be a moderate on abortion simply because he’s not utterly lawless, and many Times readers will now think that this obviously erroneous assumption is correct. Appalling.