Blindness at the Court

Hugh Hewitt quotes from an emailer who points out the danger of hubris on the Court created by its lack of judicial restraint. It's a very good point. Go read it.

It reminds me of this passage from Planned Parenthood v. Casey written by O'Connor, Kennedy and Souter, explaining their refusal to overrule Roe v. Wade:

Overruling Roe's central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. Where the Court acts to resolve the sort of unique, intensely divisive controversy reflected in Roe, its decision has a dimension not present in normal cases, and is entitled to rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. Moreover, the country's loss of confidence in the Judiciary would be underscored by condemnation for the Court's failure to keep faith with those who support the decision at a cost to themselves. A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy and to the Nation's commitment to the rule of law.

So they can't admit they were wrong, because that would hurt their legitimacy? Think about this sentence again:

"Where the Court acts to resolve the sort of unique, intensely divisive controversy reflected in Roe, its decision has a dimension not present in normal cases, and is entitled to rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation.

Did it occur to any of these people that it is not the role of the courts "to resolve intensely divisive controvers[ies]?" These are political issues because there are solid arguments on both sides and strong feelings. For the Supreme Court to decide them does not resolve them; it only makes them more divisive, especially when it distorts the plain text of the Constitution so much to get the result. It claims that overruling Roe would damage the Court's legitimacy and the Nation's commitment to the rule of law, but seems oblivious to the point that it has done the same thing, but with worse effect, by charging into the arena of policy and trying to shortcircuit the debate. They have strained at a gnat and swallowed a camel.