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OK, Am I Wrong, or Is It Just John Kerry?

This is the kind of thing that's really frustrating to read when you're studying Con Law. From John Kerry's new ad:

Title: Direct Response Choice

Narrator: The Supreme Court is just one vote away from outlawing a woman's right to choose. George Bush will appoint anti-choice, anti-privacy justices. But you can stop him.

Now, is Kerry trying to tell me that if Bush is re-elected, all of a sudden Scalia is going to become a judicial realist and start concocting constitutional reasons why abortion is not only subject to control by the states, but positively must be outlawed by them? Is the Supreme Court really in the business of outlawing things, rather than saying things may or may not be outlawed? Can I cite a presidential candidate to Prof. ConLaw as authority for the Supreme Court having the power to outlaw abortion?

Well, I suppose I could, but I'd have to be an idiot. Thankfully, Kerry and his campaign don't have to pass a Con Law exam. Of course, with Kerry's luck, there wouldn't be a separation of powers question.

Or am I just wrong? Someone tell me, because it's just over two weeks until I have to know this stuff. And it's not like Casey isn't enough of a mess without John Kerry whispering in my ear...


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Nice to know that BC Law graduates such high caliber candidates as John Kerry ;)
You are not an idiot, but you are not correct either. The USSC is in the business of determining what the US Consitution requires, permits and prohibits. Abortion is one of those things it permits (i.e. prohibits outlawing), but the legal theory on which Roe v. Wade claimed this is one Justice away from being in the minority on USSC and Bush and many states want it there. There is no question that if USSC even signals, it will be promptly outlawed and all challenges rejected. Thats what the ad means. And its true by the POTUS's own admission. As for your con law exam, dont mix election year politics into it, for your own sake. The constitution is 200+ years old and although your ignorance of it has diminished rapidly over the past year, many many other people, including Kerry, know it and use it far more than you will be able to even if you ace that exam. But good luck
Skar: I realize that. The point remains that the idea that the Supreme Court would outlaw abortion is factually wrong. Or at least that it's 'one vote' away from doing so. As for the rest of your post: There is no question that if USSC even signals, it will be promptly outlawed and all challenges rejected. There's really 'no question?' Come on. First of all, there would still be challenges to a federal ban on abortion--which would be unprecedented--and it's by no means clear that these would be rejected. And even if we felt there was no Court protection from federal limits on abortion, it's unclear that Congress would pass a law outlawing the practice in the first place, given its almost certain unpopularity. What is certain is that with the overturning of Roe and Casey, several states would consider outlawing abortion. It's by no means clear than any, much less most, of them would do so. My post above was a bit tongue in cheek, but here I'll just say it directly: Kerry's ad is wrong on the law, it's wrong on the facts.
Tony, you are quite right here, of course. The New Republic can explain to Skar why even pro-choice people should prefer (for the sake of political comity, for the sake of intellectual honesty, and with confidence that the nation is pro-choice) that Roe be overturned. Pro-Choice TNR writers have been making this case for a while--and Casey is the reductio of the alternative point of view. As to skar's point that Kerry and others have been "using" the Constitution better than you before or after our class--well, I think it speaks for itself. Cheers!

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