Paul Greenberg

Nothing is settled till it's settled right.

That's not a legal dictum, it's common sense, mother wit, moral imperative . . . whichever description you prefer. It is only lawyers, judges, politicians and such who speak with assurance about settled law, meaning settled for all time, now and forever, beyond dispute or change. So shut up, they explain.

There's a phrase for such certitude, probably several, but the one that comes immediately to mind is from Ecclesiastes: Vanity of vanities!

For nothing is less settled than law when it runs head-on into reality. You can bet something will bend, and it won't be reality. Oliver Wendell Holmes called it responding to the "felt necessities of the time."

Those who speak of Settled Law may use the phrase only when the legal question at issue has been "settled" to their satisfaction for the moment, which they tend to confuse with forever.

That's why some on the Senate Judicial Committee kept trying to get His Honor Samuel A. Alito to agree that Roe v. Wade was "settled law." It was a way of getting the next associate justice of the United States to prejudge any cases involving abortion - and commit himself to supporting it.

His inquisitors uttered the phrase Settled Law as if they were citing Holy Writ. (A typical sally, provocation and leading question: "You do not agree that (Roe v. Wade) is well settled in court?" - California's Dianne Feinstein.)

Never mind that the meaning of Roe v. Wade itself has been anything but settled since it was first handed down. It keeps growing, mutating, metastasizing. Like any other tumor.

Lest we forget, the Roe decision was going to be modest in its reach when it was handed down on Jan. 22, 1973. No less an authority than its author, Mr. Justice Harry Blackmun, asserted in a private memo that the court was not creating "an absolute right to abortion."

That naive interpretation of what he and his colleagues had wrought was echoed publicly by Chief Justice Warren Burger: "Plainly, the court today rejects any claim that the Constitution requires abortion on demand."

And yet, plainly, over the decades to come, abortion on demand has become the law of the land - and one of the most divisive, corrosive and continuing of American issues. For when it comes to interpreting judicial rulings, each generation is at the mercy of the next, with its own felt necessities.


Paul Greenberg

Pulitzer Prize-winning Paul Greenberg, one of the most respected and honored commentators in America, is the editorial page editor of the Arkansas Democrat-Gazette.


 

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