Monday, January 09, 2006

Fifth Vote Myth

Yesterday on Meet the Press, NARAL's former president Kate Michelman spouted the fifth vote myth.

Judge Alito replaces Justice Sandra Day O'Connor, a justice who was the critical and decisive fifth vote that protected women's legal rights, including their right to reproductive choice, and Judge Alito's record indicates very clearly that he approaches the law very different from Justice O'Connor, that he will swing the court dangerously and differently against women's rights and not just our right to reproductive freedom but, you know, our rights to affirmative action.

I'm always amazed (though I shouldn't be) at the blatant dishonesty of high level pro-choice advocates. Kate is well aware that if Alito is confirmed and wants to overturn Roe that there will still be five judges who will vote to uphold Roe. I would just love for Kate to explain how O'Connor was the fifth vote upholding Roe and explain how Anthony Kennedy is in favor of overturning Roe.


  1. Who would the five be? Ginsburg, Stevens, Kennedy, Souter, and Breyer?

    By the way, was the Casey decision a 5-4 split, with O’Connor, Kennedy, Souter, Blackmun, Stevens affirming, and Rehnquist, White, Scalia, and Thomas dissenting? It's hard for me to tell by a cursory glance at the opinion. Thanks!

  2. Those are the five justices whose previous records so they wouldn't be willing to overturn Roe.

    Kennedy, Souter, and O'Connor wrote the opinion of the court. Blackmun and Stevens concurred for part of it, dissented for another part. Rehnquist and Scalia also both wrote opinions that concurred in part and dissent at another part. From what I remember Blackmun and Stevens concurred with striking down of the spousal notification but dissented from the upholding of the other prolife laws while Scalia, Rehnquist, Thomas, and White concurred with the upholding of the prolife laws while dissented from the striking down of the spousal notification law.