While channel surfing yesterday evening, I came across a discussion on one of the public-affairs channels (perhaps C-SPAN) about the Supreme Court of the United States. The moderator was Adam Liptak of the New York Times. The discussants were Ed Whelan, who clerked for Justice Antonin Scalia, and University of Texas law professor Stephen Vladeck. Liptak (as I recall) asked about Donald Trump's recent statement that Roe v. Wade (1973) should be overruled but that Obergefell v. Hodges (2015) should not. The question was whether there is any way to understand this juxtaposition.
Whelan, who is conservative, seemed to think it odd that Roe but not Obergefell should be overruled. If anything, he averred, it should be the other way around, since Roe is so much older. In other words, Roe has precedential value that Obergefell lacks. Vladeck, who (I gather) is progressive, had no explanation other than that Trump is stupid. (Stupid people say stupid things.)
May I help? I can think of two reconciliations off the top of my head, and Trump is smart enough to grasp either one. (For what it's worth, I would wager a great deal of money that Trump has a higher IQ than anyone on that panel.) First, there is the practical matter that many relationships have been formed and cemented as a result of Obergefell. Lesbian and gay couples are now married, for God's sake. If Obergefell is overruled, it will, presumably, have no effect on these marriages. States such as Texas, which would almost certainly revert to their previous laws on marriage, would have many married homosexual couples within their jurisdictions even if they chose not to allow new homosexual marriages. Abortion is different. No relationships have been formed or cemented as a result of Roe. Certain women have exercised their legal right to abort and moved on with their lives. So overruling Roe would be practicable, in the sense of not being overly disruptive, while overruling Obergefell would not. This fact is well within the grasp of someone as smart as Trump, however unsophisticated he may be in legal matters.
Second, abortion is an ongoing holocaust. Isn't it conceivable that what Trump meant is that he wants to end the carnage? Homosexual marriage may be wrong or otherwise objectionable, but it isn't killing innocent human beings. Perhaps Trump takes the radical view that one of the main functions of government is to prevent harm to others, especially those, such as human fetuses, who are most vulnerable and who cannot speak for or defend themselves. I'm at a loss as to why neither Whelan nor Vladeck saw this. Perhaps their legal training has come at the expense of common sense. It's refreshing to have a president (Trump) who has common sense rather than legal cleverness. We've had eight years of legal cleverness; where has it gotten us?
Addendum: Here is video of the discussion. The part I'm writing about in this post begins at 52:43 and ends at 56:53. By the way, note the smugness and sarcasm of Vladeck. Is it just me, or is this typical of progressives? I really, really, really wish we had IQ scores for Trump and Vladeck. It might shut Vladeck up.
