When reading a website with “law” in its title, one would have a reasonable expectation that the site was at least attempting to provide substantive legal analysis. When reading LawNewz, however, one would be wrong.
There, Elura Nanos attacks Senator Jeff Sessions, Donald Trump’s nominee for Attorney General, for daring to show insufficient respect to Roe v. Wade. Specifically, Sessions answered that he stands by his previously-stated view that Roe “violated the Constitution, and really attempted to set policy and not follow law.”
Her title calls this answer “really wrong,” while in the body she writes it’s “just not quite right,” so it’s unclear exactly how outrageously outraged we’re meant to be here. But the justification for Nanos’s outrage leaves much to be desired:
Saying that a Supreme Court decision “violated the Constitution” is essentially meaningless. The Supreme Court sits as the final authority on interpretative questions of federal law. In other words, what SCOTUS says the Constitution says is what the Constitution says. That’s just how it works.
No, that’s not how it works. At all. The idea that one branch of government has an exclusive monopoly on interpreting the Constitution—y’know, the document that’s supposed to keep all three branches in check—is so blatantly backwards that its popularity can only be explained by political agendas subverting legal education and journalism.
The truth is that the three branches have a coequal power and responsibility to protect the Constitution as they understand it—from each other, if necessary. As Thomas Jefferson explained, “there is not a word in the Constitution which has given” SCOTUS more “authority to decide on the constitutionality of a law” than that given “to the Executive or Legislative branches.” Which again, should be readily apparent after just a few moments of asking oneself why we have a Constitution in the first place.
Bizarrely, Nanos next concedes there are “plenty of ways to appropriately critique Supreme Court decisions” such as Roe—she’s simply nitpicking Sessions’s wording because “it’s just far easier for him to yell ‘unconstitutional!’ and hope people will think that sounds powerful.”
Funny, I wonder if she would also label as “yelling” these condemnations of Roe, from pro-abortion legal scholars:
Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”—John Hart Ely, Yale, Harvard, and Stanford Law Schools
“What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted.”—Edward Lazarus, former clerk to Justice Harry Blackmun
“As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.”—Kermit Roosevelt, University of Pennsylvania Law School
“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”—Laurence Tribe, Harvard Law School
Sessions’ flip “Roe really stinks, but I’ll grudgingly follow it anyway” is a prelude to what we know Sessions will do as Attorney General. He will continue to obscure the legal issues surrounding reproductive freedom. He will continue to fuel the arguments of the uninformed by suggesting that Roe was some sort of judicial anomaly.
This rampant speculation is apparently based on nothing more than Nanos thinking modern abortion jurisprudence really is infallible after all, despite just claiming to respect reasonable dissent in the previous paragraph. For actual “obscuring of the legal issues” and “fueling the arguments of the uninformed,” you have to check out her nonsensical attack on Justice Clarence Thomas last summer for dismantling the illogic of Whole Woman’s Health v. Hellerstedt.
Finally, Nanos attacks Sessions for giving the following answer:
Sessions went on to tell Senator Feinstein that Roe, “is the law of the land. It has been so established and settled for quite a long time, and it deserves respect, and I would respect it and follow it.”
What could possibly be wrong with a prospective attorney general recognizing that it wouldn’t be his job to decide which rulings stand or fall, but rather to enforce whatever is in effect during his tenure? Get ready for crazy:
Such a statement is the worst kind of publicly-perpetrated con. On its face, it sounds reasonable, respectable, and righteous. But the damage it inflicts is subtle and stealthy. What Sessions has really said is that he will choose to follow the law. Such a promise hinges on the unspoken assumption that such a choice would be Sessions’ to make. It may sound gracious and even noble for Sessions to vow to uphold a legal precedent he finds so detestable and erroneous; but so characterizing himself makes the implicit point that Sessions could have chosen not to do so.
Your eyes do not deceive you; a “TV lawyer & millennial expert” (mostly the latter, clearly) is arguing that Sessions believes he has the discretion to disregard whatever he doesn’t like… based solely on convoluted inferences from his phrasing. That’s it. Never mind that he expressly called it “the law of the land” and pledged to “respect it and follow it.”
This complaint is particularly ironic considering that reserving the right to follow or ignore the law based on one’s personal desires is precisely what Nanos champions by defending abortion’s judicial status quo. Not only that, but she doesn’t care that the previous attorney general committed a far more open-and-shut case of ignoring the law by ignoring the evidence of Planned Parenthood committing numerous federal crimes. Nanos dutifully repeats the abortion industry’s utter lie that the Center for Medical Progress videos revealing Planned Parenthood’s fetal chop shop were “heavily-edited and later discredited,” even “fake.”
This is the level of dishonesty, hysteria, and legal fraud Jeff Sessions will be up against if confirmed. Here’s praying he’s up for the challenge.