Much of the discussion about the possible elevation of Judge Kavanaugh to the Supreme Court has centered on whether Roe v. Wade would be overturned. In fact, as Justice Blackmun emphasized in Planed Parenthood v. Casey, Roe has already been partially overturned. But the Court in Casey affirmed what it characterized as the central holding of Roe. Specifically, it recognized that states could not criminalize a women’s decision to have a pre-viability abortion, and it declared that a state could criminalize post-viability abortions except those that endangered the life or health of the mother.
David Brooks has previously been sharply criticized for his views on abortion (see here.)(Brooks’s views) and https://www.cnn.com/2018/02/06/opinions/who-david-brooks-leaves-out-of-his-abortion-argument-drexler/index.html and https://medium.com/planned-parenthood-action-fund/a-memo-in-response-to-the-abortion-memo-e344609f2b57
The criticisms, particularly the Planned Parenthood response, strongly suggest that Brooks's published views are disturbingly ignorant. Recently, Brooks launched an attack on Justice Kennedy for remarks made in Casey. Ironically, the remarks that drew the fire of Brooks were authored by Justices O’Connor, Kennedy, and Souter and joined by Justices Stevens and Blackmun. From his column you would think that Justice Kennedy had engaged in a flight of his own (as opposed to likely have written the first draft of the portion of the opinion Brooks attempts to savage).
The Court in Casey argued, that the due process clause of the fourteenth amendment (no state shall deny life, liberty, or property without due process of law) despite its wording did not simply assure process in a narrow sense, but directed that legislatures did not have the power to violate fundamental human rights. If a legislature does so, it employs a power it does not have (thus an unfair process) or alternatively, as the Court said in Casey, the due process clause has a substantive dimension. So, a prohibition on interracial marriage violates due process and so does a law prohibiting the possession or use of contraceptives. The Court said that carrying a child to term involves anxieties, physical constraints, and pain that the state could not require without strong justification.
In discussing the liberty right in general, the majority opinion said, “At the heart of liberty is the right to define one own concept of existence, of meaning, of the universe, and of the mystery of human life.” Whatever the strength of the state’s justification for regulating abortion and whatever the relation of the Court’s conception of the heart of liberty to abortion, one might think the right is obvious. Determining the meaning of existence, of the universe, and of human life is central to freedom of religion and central to the freedom of atheists and agnostics.
But David Brooks uses this passage to attack Justice Kennedy. What’s wrong with this right? According to Brooks, it is too individualistic. According to Brooks, to believe in this right is to believe that we are monads, that we come to our most fundamental views independent of family, social roles, oppression, and culture. To believe in this right is to deny the existence of truth; instead there are only concepts. It leaves human beings with the impossible task of determining the meaning of existence without contact with the resources of our history and culture. And, if culture disappears, government must intrusively intervene to restrain the anarchistic desires generated by an entirely individualistic society.
These criticisms might be apt if Justice Kennedy had supposed that those who exercised the right to determine the meaning of the universe would do so wholly independent of friends, family, history, and culture. But neither Justice Kennedy, nor the Court in Casey made no such supposition. Nor is there any reason to suppose that Justice Kennedy ever believed anything quite so stupid. Indeed, in Obergefell v. Hodges, Justice Kennedy stressed that the right to gay marriage was in significant part justified by the right of association, by the right of families and children. Justice Kennedy obviously does not conceive of society as composed of unrelated monads.
Having previously paraded his ignorance on abortion, David Brooks now has sloppily launched a foolish attack on a statement not made in Casey. Brooks can be expected to publish disagreeable views. But Justice Kennedy recently served his last day after a long career. One would have hoped that Brooks would have published a more responsible column on Justice Kennedy. Columnists do well when they provoke. When their provocation is rooted in sloppy analysis, they are falling down on the job.