The Paradox of Conservative Judicial Activism: Roe v. Wade and Trump v. United States

Conservatives who claim to despise the Roe v. Wade decision continue to replicate the same mistakes they criticized in the context of Trump v. United States. For decades, they have vocally condemned the Supreme Court's protection of abortion rights in Roe v. Wade (1973), arguing that the Constitution does not explicitly mention abortion, and that the authors of the Fourteenth Amendment did not intend to safeguard abortion rights. They have also accused Roe's majority opinion of grossly expanding dubious precedents related to privacy rights, creating a regulatory framework that resembles legislation rather than constitutional law. A similar pattern emerges in the Roberts Court's conservative majority opinion in Trump v. United States, where they justify limiting the prosecution of Donald Trump for various crimes by employing the very same legal technique they previously condemned when used to advance women's reproductive rights.

Key Takeaways:

• The conservative approach to Roe v. Wade and Trump v. United States demonstrates a paradoxical streak of judicial activism, where they use dubious precedents to justify restrictive interpretations of the Constitution.
• The argument against Roe v. Wade revolved around the absence of an explicit constitutional mention of abortion, which is mirrored in the conservative majority opinion's refusal to acknowledge a constitutional commitment to the separation of powers.
• Trump v. United States repeats the same pattern of judicial activism, where the majority opinion dramatically overextends dubious precedents to limit the prosecution of the president, creating a regulatory scheme that smacks more of legislation than constitutional law.
• Both decisions illustrate the tension between the conservative critique of judicial activism and their own willingness to engage in activist interpretations of the Constitution when it suits their ideological goals.
• The authors of the Fourteenth Amendment did not explicitly mention abortion, and the Constitution does not mention presidential immunity.
• The majority opinions in both cases demonstrate a selective application of constitutional principles, highlighting the fossilized character of conservative thinking on the Supreme Court.
• Trump v. United States exemplifies the thin line between judicial restraint and judicial activism, raising questions about the consistency and credibility of conservative judicial philosophy.

Statistics:

• 50 years have passed since the Supreme Court's decision in Roe v. Wade (1973).
• The conservative majority opinion in Trump v. United States employs a similar legal technique used to advance women's reproductive rights in Roe v. Wade, which they previously condemned.
• 3 distinct legal categories of pregnancy were invented in the course of the Roe v. Wade decision to regulate abortion.
• 3 analogous categories of presidential action were created in the context of Trump v. United States to limit the prosecution of the president.

Sources:

• (https://verfassungsblog.de/trump-v-united-states-as-roe-v-wade/) Verfassungsblog