Wednesday, August 06, 2014

Dumb Remarks and Federal Judges

I think many of us are used to federal court judges making statements in their rulings or written opinions that are, um, to be charitable, a bit dubious.

The most recent in my view to do this is Judge Myron Thompson, who recently made the headlines in striking down Alabama's abortion law, arguing it placed an "undue burden" on a woman who wants an abortion to get one. The "undue burden" phrase of course comes from former Supreme Court Justice Sandra Day O'Connor, who disappointed many when she voted with the majority to uphold the odious Roe vs. Wade ruling that legalized most abortions in the U.S. You can read about Thompson's ruling here.

The "undue burden" statement isn't my focus. I'm singling out this particular paragraph in the report for my "dumb remark" award:

In another unique legal argument probably aimed at a rural and mostly Southern audience, Thompson compared abortion rights with the Second Amendment’s right to bear arms – noting that a law that allowed only two gun shops in Alabama to remain open “would take a heck of a lot of explaining.”


Comparing abortion, which is purposefully taking the life of an unborn child, and gun shops is patently ridiculous. Firstly, a gun is an inanimate object. An unborn child is not. Second, the right to keep and bear arms is explicitly spelled out in the Constitution as a right under the Second Amendment. Abortion is not spelled out in the Constitution as a right, and the Supreme Court had to do some considerable gymnastics to find one and impose it on the country. Thompson's statement is almost beyond words.

While I am firm in my opposition to Roe—which ironically O'Connor had previously stated was "wrongly decided," I think Thompson would have been correct jurisprudentially to say that the Supreme Court ruled to uphold abortion rights in general under the undue burden test, and that Alabama's law as written appeared to him to violate that test. Then let the higher courts fight it out. But to take a shot at Southern culture by trying to tie abortion to the gun issue, Thompson has left me and probably a good many others wondering how he got on the bench. Another reason to force term limits on federal judges. No one deserves a lifetime appointment to anything. Especially when you hold peoples' lives in your hands.

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