WSJ’s Bad Argument: Yes, the Justices Lied to the Senate

June 27, 2022

The Wall Street Journal used to be required reading when I was a Finance Major in college. It was a newspaper for business people and took a reasonably objective stance when reporting facts.

Granted, Sunday’s Opinion published by the Editorial Board is published as an “opinion.” But, the poorly formed argument depicts just how far the WSJ has slipped from being objective since being acquired by News Corporation, the owners of Fox News.

The Opinion claims the justices who voted to overturn Roe v. Wade did not lie during their confirmation hearings, despite widespread claims, and mountains of documentary evidence, they did.

This is how the Editorial Board twists their argument:

“The reason is that the first rule of judging is that you can’t pre-judge a case. Judges are limited under Article III of the Constitution to hearing cases and controversies, and that means ruling on facts and law that are specific to those cases.

No judge can know what those facts might be in advance of a case, and judges owe it to the parties to consider those facts impartially. A judge who can’t be impartial, or who has already reached a conclusion or has a bias about a case, is obliged to recuse himself. This is judicial ethics 101.”

To the untrained eye, this might sound like a reasonable argument, even though it’s being made by someone who apparently doesn’t understand the law. In fact, it was one of the big Republican talking points during the confirmation hearings, and one which allowed three anti-Roe justices to slip by while pulling the wool over the eyes of dimwits like Susan Collins and Joe Manchin. (Both now claim Kavanaugh and Gorsuch deceived them during their testimony and in private meetings.)

So, why is this a bad argument? First and foremost, the justices were not pre-judging a case, they prejudged a law. Roe v. Wade is settled law as determined by 50 years of precedent. The justices did not overturn a case, they overturned a law. Yet, the WSJ is trying to frame the justice’s deceit as one that applies to a case by quoting Democratic darling Ruth Bader Ginsburg:

“A judge sword to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” (Emphasis added.)

Justice Ginsburg was talking about a case, not a law. And, one would hope the WSJ would know better than to create strawman arguments with a contrived appeal to authority. But, they don’t.

Perhaps an example would be best to illustrate this point. Let’s say a twice-impeached, undemocratically elected one term ex-president is accused of inciting an insurrection on the United States. (Completely hypothetical, of course.)

Now, let’s say the nominee was asked, “Did so-and-so commit treason?” At this point, before charges are made, or a case is in front of the court, it would be appropriate to say, “I can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case…” and so on.

On the other hand, let’s say the nominee was asked, “Is treason a crime?” There is no case to consider. No facts to weigh. It’s a simple question any first year law student should get right on the final exam. YES. Treason is a crime.

Without a doubt these justices lied, despite the WSJ’s efforts to obfuscate the facts. In keeping with the example above, these nominees were asked, “Is treason a crime?” To which they responded, “Yes.” Then, when the case made its way before the court, they decided treason was not a crime.

Roe v. Wade was not a case before the Supreme Court in 2022. It was, in the justice’s own words, settled law. SCOTUS did not determine whether a particular case violated the law, the five justices who voted to overturn Roe v. Wade threw out the law. One they pre-judged was “wrongly decided,” because being anti-Roe was a requirement for their nomination. Then, in order to gain access to the highest court in the land, they lied about their intentions. No amount of gaslighting by the WSJ or anyone else will change the facts. They lied.

At one time, The Wall Street Journal would know better than to make such poorly reasoned agruments. They would respect their readers more than to blatantly misrepresent the facts. Unfortunately, that has become de rigueur in right-wing media. One with the same kind of agenda that forced these lying justices onto the court in the first place.