Roe v. Wade defenders continue to claim to be democracy defenders
Timothy P. Carney
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Josh Chafetz is a liberal law professor at Georgetown University who uses his position of prominence to threaten the safety and legitimacy of the Supreme Court because it makes rulings with which he disagrees. That’s the closest thing to a unifying thread one can find in his work.
Begin in May 2022, when someone leaked the draft of the opinion in Dobbs v. Jackson Women’s Health Organization, the case that would overturn Roe v. Wade. The most likely purpose of this leak was an attempt to rally abortion defenders and the news media into a mob that would save Roe by intimidating the justices or worse.
As the mobs gathered outside the homes of conservative justices, Chafetz cheered them on because, well, he agreed with the mob that Roe was right.
This latter tweet is the key to understanding Chafetz and much of left legal academia. Chafetz, like a good lawyer, constantly argues in terms of process, fair play, and rules of the road. Then, he, again and again, reveals what he really cares about is outcomes.
The outcome he sought was saving Roe, so he supported the mobs that intimidated justices’ families and drove them from their homes, presumably because such threats and intimidation might convince a justice or two to flip to his side.
The nationwide mob Chafetz supported as the good guys manifested itself in a credible attempt to preserve Roe by assassinating enough justices to preserve a pro-Roe majority.
And because Chafetz wants us to talk about substance, let’s talk about the substantive side Chafetz and his mob took here: that abortion should be outside of politics, that neither Congress nor state legislators should be allowed to legislate on the core questions regarding abortion, and that instead, the U.S. Supreme Court should set abortion law.
Considering that Chafetz holds this position more important than any ideas about civility, you might assume that Chafetz, a law professor, has some deeply held belief that the Supreme Court ought to do what the Roe court did and aggressively intervene to stop legislatures from settling difficult questions that involve balancing rights.
You’d be surprised, then, to read the professor’s op-ed in the New York Times this week and see the grounds on which he is attacking the Supreme Court:
“Over roughly the past 15 years, the justices have seized for themselves more and more of the national governing agenda, overriding other decision-makers with startling frequency. And they have done so in language that drips with contempt for other governing institutions and in a way that elevates the judicial role above all others.”
“The result has been a judicial power grab.”
Chafetz supports mobs against Dobbs because Dobbs returned abortion — which, unlike gun rights and free exercise of religion, is never mentioned in the Constitution — to lawmakers while supposedly believing that the court really needs to return issues to lawmakers.
If you’re baffled, return to Chafetz’s pro-mob tweet.
Mobs are bad, except when they might save abortion. Judicial activism is bad except when it might save abortion.
So it’s not a double standard, after all. It’s a single standard — just not the one he claims.