How many times does someone have to repeat a falsehood before it becomes true?
The answer, of course, is that no matter how many times someone repeats a falsehood, it never becomes true.
This principle holds even for the U.S. Supreme Court. A majority of the court, for example, could declare that gold is lead. But that wouldn't make it true.
The court could issue opinion after opinion reaffirming its determination that gold is lead. But the repetition would not affect the reverse alchemy the court purported to perceive. Gold would remain gold.
Now, the confirmation hearings for Associate Justice-nominee Samuel Alito demonstrate that, for Senate Judiciary Chairman Arlen Specter, there is a second question that must be considered when it is indeed the Supreme Court that has repeatedly declared a falsehood.
The question is: How many times must a majority of the court repeat the falsehood before it becomes binding on all future justices?
The falsehood repeated by the Supreme Court that Specter would like to preserve is not that lead is gold. It is that the 14th Amendment created a right to kill an unborn child. This so-called "right" was first discovered by seven members of the Supreme Court in the 1973 Roe v. Wade decision. It was immediately exposed as a falsehood by the late William Rehnquist, then an associate justice, who pointed out in a dissent that the abortion-limiting laws of 21 states, including the Texas law specifically addressed in Roe, had been in force before ratification of the 14th Amendment and had remained in force for more than 100 years after ratification.
Obviously, the seven justices who voted for Roe had little regard for the longstanding "precedent" established by these more-than-a-century-old state laws.
But now, Specter suggests, the relevant question for a justice is not whether Roe is true. It is whether it has become a "super precedent" that cannot be reversed because it has survived a mere 33 years.
Specter started Tuesday's confirmation hearing for Judge Alito with a virtual replay of a line of questioning he used in September at the confirmation hearings for Chief Justice Roberts.
As he had with Roberts, Specter asked Alito a series of questions about the 1992 Planned Parenthood v. Casey decision, in which Justices Sandra Day O'Connor, Anthony Kennedy and David Souter argued that the basic holding of Roe -- that abortion is a "right" -- should be maintained not because it is true, but because the court had claimed that it was true (up to that point) for 19 years.
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