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Christopher Scalia claimed that abortion is an issue that the people should vote on, amid ongoing protests over the Supreme Court draft opinion leak. On “Cavuto Live” Saturday, Scalia argued courts should not “intervene” on cultural or social issues “outside their jurisdiction” as they most often “fail” to settle the issues.
CHRISTOPHER SCALIA: Absolutely. He’s made that argument often, and probably he put it best in his dissent in the 1992 case, Planned Parenthood v. Casey.
But it’s still, you know, basically kept the consequences of Roe in place. And my father’s argument was that, yes, absolutely, there are some things that are off-limits for democratic governance. You know, the First Amendment, for example, makes that clear. But abortion is obviously not one of those things. And when justices try to intervene and settle cultural and social debates that are really outside of their jurisdiction, they fail. And that obviously was the case with Roe and again with Casey. They did not settle the issue of abortion. That issue properly remains in the hands of the people through their elected representatives.
And I think that’s one of the things that’s kind of being lost even among conservatives with this draft, it is only a draft. But if this general gist comes through with the majority opinion, it will actually be good for democracy. I know a lot of Democrats are saying otherwise, that this deal’s a terrible blow for democracy. But that’s not the case at all. This issue belongs in the hands of the people, not the justices. So if this is the end result, I think my father obviously would have been very pleased with it. And overturning Roe does not mean banning abortion across America, as many people seem to believe. It means that people actually get to vote on the issue, which is how it should be.
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