It never should have happened

Megan McArdle in The Washington Post:

.... No legal case has done more than Roe to define how the left sees the Supreme Court: not as a somewhat boring final arbiter of words recorded in law books, but as the oracle that tells us what rights the Constitution ought to guarantee. Consequential cases such as Brown v. Board of Education (1954) and Miranda v. Arizona (1966), concerning racial segregation and the rights of police suspects, respectively, dealt with matters that clearly involved the Constitution. There was no question that resolving just such ambiguity is the Supreme Court’s job.

But by the 1970s, the court was, one suspects, a little drunk on the moral and legal triumph of those earlier cases. The justices were now going well beyond the words in the law books and into the unwritten law of what used to be called “enlightened opinion.” In 1972, they abolished the death penalty in all 50 states, even though the Constitution clearly contemplates government-administered capital punishment.

The following year, the justices gave the country a new right to abortion. The right is nowhere mentioned in the Constitution, but had apparently been lurking there undetected for the better part of two centuries before the justices finally coaxed it into the open. From this era dates the solemn invocations of “settled law” issued by “the highest court in the land.” ....

If the Supreme Court hadn’t intervened on abortion, political debate might have sorted voters along a spectrum, rather than forcing them into the unforgiving yes-no binary. And if you fear you’re about to end up on the wrong side of that binary, you might wish your side had settled for something less grandiose, but more enduring.

The Supreme Court should have never intervened on abortion - The Washington Post