Related articles and links |  1 of 17

Inside the "originalist" Gonzales opinion that has pro-lifers so upset
When Sandra Day O'Connor announced her resignation from the Supreme Court, Focus on the Family founder James Dobson issued a press release through his more political Focus on the Family Action organization. "Focus Action Calls for Strict Constructionist," said the headline.

"The rulings by the Court this June, particularly the schizophrenic decisions on the Ten Commandments cases, have once again demonstrated the desperate need for justices who will interpret the Constitution as it was written, not as the latest fads of legal theorists dictate," Dobson said. "President Bush must nominate someone whose judicial philosophy is crystal clear."

Dobson's press release makes no mention of abortion or Roe v. Wade, nor does a Focus on the Family CitizenLink article about conservatives' criticism of Alberto Gonzales, the attorney general who is widely seen as Bush's leading candidate to replace O'Connor.

That criticism—which includes Focus on the Family's announcement that it would publicly oppose Gonzales—has been loud enough that Bush said publicly, "Al Gonzales is a great friend of mine. When a friend gets attacked, I don't like it."

But why are conservatives upset about Gonzales? Some, National Review's Ramesh Ponnuru notes, are upset that "he weakened the administration's brief to the Supreme Court in the University of Michigan racial-preference cases. Solicitor General Ted Olson wanted the administration to say that the use of racial preferences to achieve diversity is constitutionally impermissible. Gonzales overruled him."

But the big one for religious conservatives is Gonzales's "record" on abortion.

As a judge, Gonzales has one big strike against him: allowing a Texas minor to receive an abortion without parental notification.

The irony for many pro-life conservatives is that Gonzales's concurring opinion in that case is largely devoted to defending the originalism that they say they want in a Supreme Court justice.

Gonzales begins his opinion by denying that it reflects his views on abortion. "It has been suggested that the Court's decisions are motivated by personal ideology," he complains.

To the contrary, every member of this Court agrees that the duty of a judge is to follow the law as written by the Legislature. This case is no different. The Court's decision is based on the language of the Parental Notification Act as written by the Legislature and on established rules of construction. Any suggestion that something else is going on is simply wrong.

Legislative intent is the polestar of statutory construction. Our role as judges requires that we put aside our own personal views of what we might like to see enacted, and instead do our best to discern what the Legislature actually intended. We take the words of the statute as the surest guide to legislative intent. Once we discern the Legislature's intent we must put it into effect, even if we ourselves might have made different policy choices.

The Texas parental notification law, Gonzales wrote, contained significant exceptions. All a girl has to do to avoid telling her parents of her abortion is to show that she's "mature and sufficiently well informed to make the decision," that telling her parents "would not be in [her] best interest, or that such notification might lead to abuse of some kind."

If minors take advantage of those exceptions, it's the legislature's job to close the loopholes, not the court's, Gonzales wrote. "To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism. As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so."

next page... |  1 of 17

July (Web-only) 2005, Vol. 49