SON OF WISDOM – AT 1:32 P.M. ET:  Well, the apple didn't fall far from the tree.  The son of the late Justice Antonin Scalia, a giant of the Supreme Court, shows he has his father's careful mind.  From Fox: 

The son of late Supreme Court Associate Justice Antonin Scalia told Fox News on Sunday that his father wouldn't have been shocked by the partisan conflagration surrounding the nomination of Judge Brett Kavanaugh, owing to what he called the improperly outsized power of the Supreme Court in modern life.

"On a general level, he wouldn't be terribly surprised about the intensity surrounding this Supreme Court nomination, because so much of it comes down to Roe v. Wade -- at least, that's how the left is presenting it," Christopher Scalia said, referring to the landmark 1973 case holding that women have a constitutional right to an abortion within certain trimesters.

In one fell swoop, Roe effectively prevented states from deciding on their own how to regulate abortion, and several states immediately took steps to try to restrict abortion rights in response.

"My father often said, with Roe v. Wade in particular but other cases as well, the court was really trying to come in and settle a cultural issue that should have been resolved in elections, and the legislative process," he added during his appearance on "Fox & Friends." "By trying to short-circuit that process, the Supreme Court caused more damage and, as a result, Supreme Court nominations and confirmation battles have become more heated, because justices have taken on the role that properly belongs to legislators."

COMMENT:   He is correct.  The purpose of a court, any court, is to interpret the law, not to make the law, and surely not to change social and religious customs at will.  Even Ruth Ginsburg lamented that she'd wished the issues of Roe had been decided by the states. 

I would introduce, though, one gentle note of dissent:  The Court was controversial, to some degree, long before Roe.  In the 1930s, President Franklin D. Roosevelt called the Court "nine old men," and tried to pack it with additional justices because some of his New Deal legislation had been declared unconstitutional.  He was rejected.

In 1954, there was an expected uproar after Brown vs. Topeka Board, the famous school desegregation decision, was handed down.  Chief Justice Earl Warren, heading a unanimous court, became, for the South, Public Enemy Number One.

And in 1962, the Court again became the center of anger when it released its decision restricting prayer in public schools.

But it was Roe, in 1973, that galvanized objections to what some saw as the growing, arbitrary power of the Supreme Court.  And indeed, the Court, in a 7-2 decision, with Justices White and Rehnquist dissenting, involved itself in deep issues of theology, biology, and ethics.   Roe has become what is probably the single most controversial decision in Court history.

September 30,  2018