The Supreme Court will hear arguments tomorrow on the constitutionality of restricting late-term abortions, and as the New York Times reports, this will provide a moment of clarity for the Roberts court. Congress passed the measure in defiance of the court's ruling on a Nebraska state law, and the court -- with its two new members chosen for their judicial restraint -- will have to determine whether Congressional prerogative trumps emanations from penumbras:

THE arguments the Supreme Court will hear on Wednesday on the constitutionality of the federal Partial-Birth Abortion Ban Act promise much more than a resumption of a familiar debate over a method of terminating a pregnancy.

In defining the permissible limits on access to abortion, only six years after declaring a similar restriction unconstitutional in a case from Nebraska, the court must go a long way toward defining its stance toward precedent, its relationship to Congress, and its view of its own role in the constitutional system. As it decides the new cases, the still-emerging Roberts court will inevitably be defining itself. ...

The administration argues that the federal law and the Nebraska ruling can coexist if the court recognizes an obligation to defer to Congress’s judgment that a health exception is unnecessary. But if the court finds otherwise, Solicitor General Paul D. Clement will argue, then the Nebraska precedent, not the federal law, should fall.

Ironically, this comes a day after the nation's voters will determine whether the Senate will allow more strict-constructionist judicial nominees to be confirmed to the nation's courts, especially the Supreme Court. The Times analyzes the changes in the court over the past six years, and acknowledges the impact that John Roberts and Samuel Alito will have on this decision, especially the latter.

This case holds heavy implications for the concept of the primacy of the people's representatives, no matter how one feels about the specific procedures. Where no text in the Constitution applies to the specifics of the case, the Court should defer to Congress on all matters of policy. That, in a nutshell, is what judicial modesty means, and one has to wonder whether Roberts and Alito will stick with that philosophy in the face of the six-year-old precedent. They will face tremendous pressure to recant in favor of stare decisis, not just from activists but from other members of the Court who supported the Nebraska ruling.

They should stand firm. American democracy has to give primacy to the people's representatives on matters of policy. The judiciary has no business dictating policy, as they have no accountability for those decisions and cannot be recalled by the voters. The Constitution should never have been transformed into a moral-relativist document in which hard text and limited power gave way to fuzzy interpretations and leaps of logic that allow judges to create themselves as benevolent despots. The Founding Fathers did not create the balanced government we have just to allow nine men and women in robes to turn themselves into the American version of the Iranian Guardian Council.

Voters should consider this today, even before the arguments get heard. If the Senate slips into Democratic control, we will see an end to nominees that believe in judicial restraint and the primacy of elected officials in determining policy. At least one Supreme Court slot will likely open in the final two years of the Bush administration, as well as a number of appellate and district court openings. The results from today's elections will determine what kind of judges will fill those slots. Choose wisely.

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» Since when was abortion interstate commerce? from Strange Women Lying in Ponds
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Tracked on November 7, 2006 7:41 AM