JOHN DERBYSHIRE: The Spirit Of Scalia And The End Of ROE v. WADE
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Earlier: Peter Brimelow On Judicial Imperialism In FORBES...THIRTY [FIVE] YEARS AGO!

While I was putting together my notes for today's podcast, the news came out that, as leaked a few days ago, the U.S. Supreme Court has indeed reversed the 1973 abortion decision Roe v. Wade.

You can read it below, with tendentious annotations from the New York Times, or take it plain in PDF here.

There is, after all, the Supremes have ruled, no national right to an abortion hidden in the cracks and fissures of the U.S. Constitution. If Americans at large would like there to be such a national law, they should lobby their senators and congressmen to write and enact one. Should whatever is written and enacted then be judged unconstitutional by the court, citizens should agitate for an appropriate constitutional amendment.

That's the system we have and have had since the Founding. But since the mid-1960s it has been corrupted by judicial imperialism, aided and abetted by Congress failing to carry out its proper functions.

There have been a few jurists aware of the problem, and vocal in their written opinions that it is not the job of the courts to legislate; but their voices have been drowned out by the modern liberal intelligentsia, which has included most of our lawyers and judges.

My favorite of those few dissident voices: the late Supreme Court Justice Antonin Scalia, who left us six years ago. When I saw this morning's news my first thought was: "Ah, the Spirit of Scalia!" Apparently, the late Justice's spirit is indeed active in the Roberts court.

I mentioned constitutional amendments. When was the last one, do you know? Answer: It was thirty years ago last month.

Just keep that number thirty in mind while I cruise back through the last ten amendments to the Constitution, saying aloud the number of years that elapsed between each amendment and the previous one. You ready?

Starting with the last amendment thirty years ago, the previous one was 21 years before that, the one prior four years before that. So the sequence goes: 30, 21, 4; then 3, 3, 10, 18, 0, 13, 1.

That takes us back to 1919, 103 years ago. As you can see, that current gap of 30 years—and there's no amendment in sight, so the actual number will be bigger—but even just as it is, that gap of 30 years is a real anomaly in modern American history.

Never mind "modern," in fact. If you go still further back, all the way from 1919 to the adoption of the Constitution in 1787, what was the average gap between amendments in years across that span? Answer: less than eight years—seven point seven something.

It's the same with other parts of that wonderful constitutional machinery the Founders bequeathed to us—with impeachments, for example, which are way too few.

That machinery, that wonderful, vigorously argued, carefully thought-out machinery, is idle and rusting, tempting power-hungry villains and moralizing zealots to bypass it: tempting the Executive to cease enforcing laws they don't like, Congress to neglect key issues their big-money donors want neglected, the Judiciary to make the laws Congress won't make.

Now, here at last, we see a reversal of the trend. Hallelujah! May there be many more to come.

Concerning the abortion issue itself: personally, I sit, as I've often said, with the majority of Americans overall, or perhaps a tad to the right of them, in not minding abortion on demand up to some definite limit—twelve weeks seems to be the consensus—with abortion thereafter legal only when there is indisputable risk to the mother's health in going to term.

That is, I believe and hope, a mild, sensible opinion midway between the every-sperm-is-sacred lobby and the folk who want to decapitate unwanted newborns.

I'm not deeply concerned about the issue, though, and I'll go along with whatever the people of my state decide following this ruling. I may grumble a bit, that's all.

There are, of course, plenty of people out there wa-a-a-ay more passionate than that on the issue. It is in fact a touchstone issue for our Cultural Revolutionaries, and for the Ruling Elites who support them.

We have already seen some very nasty demonstrations in front of the Supreme Court building and outside the private homes of dissident Justices—Justices, I mean, whose written opinions contradict elite ideology. There has been one attempt by a Cultural Revolutionary to assassinate Justice Brett Kavanaugh, inspired by the leak of the Roe v. Wade reversal [Man accused in Kavanaugh assassination plot pleads not guilty, by Dan Morse, Washington Post, June 22, 2022].

The next few days will show us how willing the Regime is to deploy its forces against class enemies. Those forces will include both regulars and irregulars: both federal agencies like the Justice Department, the FBI, and the DHS, and also irregulars like Antifa, BLM, and this new one called Jane's Revenge.

If, for example, Antifa burn down some Catholic church, will there be arrests and prosecutions? Or will the event be memory-holed, like the January 2017 Inauguration Day riots or the 2020 attack on the White House?

Or suppose—God forbid! but just suppose—some more competent activist succeeds in assassinating one of the Establishment's class enemies on the Supreme Court.

Clarence Thomas must look like a tempting target. The Regime and its media could sell the assassination as an act of White Supremacy.

John Derbyshire [email him] writes an incredible amount on all sorts of subjects for all kinds of outlets. (This no longer includes National Review, whose editors had some kind of tantrum and fired him.) He is the author of We Are Doomed: Reclaiming Conservative Pessimism and several other books. He has had two books published by com: FROM THE DISSIDENT RIGHT (also available in Kindle) and FROM THE DISSIDENT RIGHT II: ESSAYS 2013.

For years he’s been podcasting at Radio Derb, now available at for no charge. His writings are archived at

Readers who wish to donate (tax deductible) funds specifically earmarked for John Derbyshire's writings at can do so here.

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