Alan Dershowitz to Newsmax: SCOTUS Shirks 'Judicial Restraint' Again on Abortion (Newsmax/"America Right Now")
By Eric Mack | Saturday, 25 June 2022 12:33 PM
Roe v. Wade would need to be ultimately revisited, according to constitutional law expert Alan Dershowitz on Newsmax, but the five conservative Supreme Court justices "violated their own constitutional powers" by doing it in this Mississippi abortion case.
"I was also skeptical of Roe v. Wade, but this is not the case to make that decision," Dershowitz told Saturday's "America Right Now" host Mike Carter. "You wait until you have to make a decision overruling a prior case. That's what judicial restraint is all about."
Dershowitz also told Carter that the Supreme Court justices "made the decision they didn't have to make."
"When Mississippi sought review in the Supreme Court, they said you don't have to overrule Roe v. Wade: The only issue is whether a ban on abortion after 15 weeks is unconstitutional," Dershowitz said.
"What the Supreme Court did is engage in outrageous judicial activism. They reached out to decide an issue not before them. They violated their own constitutional powers. The Supreme Court has the power only to decide cases and controversies. They do not have the power to issue advisory opinions. And this is a self-inflicted wound. What we're seeing on the streets is absolutely unnecessary."
Five conservative justices, including three put on the bench by former President Donald Trump, decided Friday 5-4 to take the Dobbs v. Mississippi 15-week abortion restriction case and kick the entire issue of abortion back to the states.
Even if that is where it belongs, Dershowitz noted this was "not the case to do it."
"All the Supreme Court had to do was follow Chief Justice [John] Roberts' statements," Dershowitz told Carter, after Roberts sided with conservatives on the Dobbs case, but sided with the liberal justices on kicking abortion law back to the states. "Roberts wrote an opinion saying the issue of Roe v. Wade is not before us; it's only 15 weeks. But these agenda-driven five judges decided they had to reach out and the side that issue, improperly, not before them.
"So, without even deciding whether Roe v. Wade should or should not be overruled, this was not the case to do it," Dershowitz reiterated. "That's simple. And the Supreme Court should never have decided whether to overrule Roe v. Wade in a case not presenting that issue."
Regardless if the abortion precedent of Roe v. Wade was wrongly decided, Dershowitz said it can't be overruled similarly.
"I'm not saying that precedent always governs; what I'm saying is judicial restraint always governs – that courts should never, whether liberal or conservative, become activists and reach out and decide cases not before them," he continued. "They would have had to decide Roe v. Wade eventually – two years, three years, five years – but what they should have decided yesterday is the Mississippi statute banning abortion after 15 weeks is constitutional – end of opinion."
The Mississippi statute was creatively written to bring the issue of abortion back before the Supreme Court, but it was one that should have come in a series of cases to help decide the future of Roe v. Wade precedent – not end it this quickly – Dershowitz noted.
"Wait for our next opinion until a state passes a law saying no abortion, then we'll decide that case," Dershowitz added. "The Supreme Court improperly reached out in an act of judicial activism, decided a case not before it."
Late Justice Ruth Bader Ginsburg famously called Roe v. Wade bad case law, but she would not have used this Dobbs v. Jackson Women's Health Organization to act to issue that opinion.
"She was not necessarily wrong, but she would never have decided the case in a case not before it," Dershowitz said. "The issue is not whether Roe [v. Wade] was wrong. The issue is whether this is the case to decide that."
"Right now all the court had to do was say 15-week limitation is OK, but they rushed to judgment and they decided a case that was not properly before them.
"It would be so much better to do this gradually," Dershowitz continued. "Even if you're gonna accept Justice Ginsburg's view and overrule Roe v. Wade, you do it in steps."
Conservatives have long talked about Democrats overreaching in the judiciary and now have done it themselves with the majority now, Dershowitz concluded.
"Conservatives claim they like judicial restraint, but they like it from me, but not for thee," he said. "They only like judicial restraint when it supports their views. They don't want to generalize and apply judicial restraint.
"Chief Justice Roberts, who's conservative, was absolutely correct."
Dershowitz also thanked Newsmax for presenting all sides of the issue to views.
"I appreciate your allowing me to present a different perspective from that which is generally on Newsmax," he said. "That's what's great about Newsmax: All different views are accepted."
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