Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, August 29, 2012

Fragoso on "Judicial Conservatism" and Roe

By Rick Garnett

My former student, Michael Fragoso, has the first of a two-part essay up at Public Discourse, explaining (among other things) why it is a mistake to say, as some do, that (something like) "because Republican judges helped to give us Roe v. Wade and Casey, it doesn't really make a difference, for purposes of securing a more just and constitutionally sound abortion-law regime, which party is in charge of nominating and confirming judges."  Part Two of the essay will run tomorrow . . .

https://mirrorofjustice.blogs.com/mirrorofjustice/2012/08/fragoso-on-judicial-conservatism-and-roe.html

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I think it is fair to say that it is a mistake to argue that "that it is anachronistic to blame Roe on Republican judicial policies." However, I'm not yet convinced to see it as a mistake to blame PP v. Casey on Republican judicial policies and strategy. I guess that's what the next essay will be all about.

This second issue of blaming Casey on Republican judicial policies will be a tougher argument to make, particularly because of the "libertarian" element of what has become Republican jurisprudence of which Justice Kennedy is a paragon (See Casey and Lawrence, see also, Heller and the Obamacare concurrence for a generally 'libertarian' flavor of Republican jurisprudence).