Big Applesauce, the Supreme Court gets an editor, sinful moments in tax policy, and other matters. FLUNKING HARRY

(FORTUNE Magazine) – With the country now poised for hearings on a Supreme Court nominee, and for boundless recrimination over the law of abortion, we propose to indulge in a little fantasy previously not allowed out of the house. We begin by imagining that we are once again an editor of FORTUNE the kind of editor who critiques drafts turned in by writers and assists in their enhancement. This was, in fact, what we mainly did for many years upon getting out of bed in the morning. Perhaps the major legacy of this career, not counting the undying affection of the scriveners whose copy was ennobled by our kibitzing, has been a curious inability to walk by a stretch of illogical writing without explaining what's wrong with it. This brings us to the fantasy. It posits that our editorial chore for the day is to give a detailed response to Harry Blackmun, who for some reason (the scenario gets a bit cloudy here) has turned in a manuscript identical to Roe v. Wade -- this being, of course, the famous 1973 opinion written by Blackmun and adopted (7 to 2) by the Supremes, as a result of which abortion rights got to be protected by the U.S. Constitution. We sense a need to state at about this point that we personally favor such rights; however, we very much doubt that they are constitutionally protected. Or that -- as our editor's note to the Justice implies -- his opinion made a whole lot of sense.

''Dear Harry: There is a lot of wonderful stuff in your draft, especially the long historical overview taking abortion from the Persian Empire to modern times. ((N.B.: This is an ominous introduction, as every writer knows that editors who begin by praising particular passages are usually just groping for something affirmative to say before lowering the boom on the work as a whole.)) On the other hand ((N.B.: Here it comes.)), the history seems mostly irrelevant to our core question, which is whether or not the district court erred in holding unconstitutional the Texas law barring virtually all abortions. ''Also logically unconnected to this question is your ensuing lengthy section on the various rationales offered over the years by those seeking to criminalize abortion in many different countries. What is that section doing there? Why do you take the reader to the 10,000-word mark, in an opinion of some 14,000 words, without having begun to marshal the argument you ultimately make: that a right to abortion resides in previous Court decisions proclaiming a right of privacy. One rather gets the sense that you felt obliged to pad the text because it might seem wrong to come up short in such a momentous decision. ''This sense is reinforced by the perfunctory character of your argument when we finally do get to it. Your problem in this section is to show why a ; right of privacy requires a right of abortion. But you do not squarely address this problem. Nowhere do you even try to show why, under the U.S. Constitution, a leads to b. Instead, you simply asseverate: 'This right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.' Harry, be reasonable. Your job is to prove it, not just say it. ''To be sure, you follow the sentence quoted with various armchair arguments favorable to abortion rights. You allude to medical and psychological risks associated with many births, to the problems of unwanted children, to the stigma of unwed motherhood. Many folks might agree that these arguments make a right to abortion seem wise public policy. But, of course, it is not your job to set public policy. It is to decide which rights are constitutionally protected, and that's not the same thing. ''We were hoping your argument would pick up steam when you got to your three-trimester scheme, but it continued to stumble. Take the first trimester. The state of Texas justifies anti-abortion laws in this period because, it says, life begins at conception. You respond by groaning about the impossibility of deciding when life begins, since doctors, philosophers, and theologians have no consensus. Okay, fair enough. But then you suddenly turn around and do resolve the question. You cite various laws holding that life begins only at birth, and decide that Texas may not adopt 'one theory of life' deciding otherwise. What ever happened to all the theologians? ''Strange things occur when you set out to prove that the state may intervene only in the second and third trimesters. You begin by referring to medical data indicating that until the end of the first trimester, mortality rates in abortion are lower than those in ordinary childbirth. Let's assume that's true. You then say, 'It follows that' the state may regulate the abortion procedure from this point on. Huh? Why does that follow? Next you say it also follows from those mortality odds that the state may not regulate the first trimester. Harry, those are not even half-sequiturs. Why would any linear thinker link the state's right to regulate to the relative risks run in abortion and childbirth? What's the connection? If there was one, it would imply that the state could also regulate abortion in the first trimester anytime deaths in childbirth fell below those in abortion. ''As the foregoing remarks indicate, you have a very strong article going here. ((N.B.: Editors like to conclude their critiques on an upbeat note, however mendacious.)) If you would only throw out the first 10,000 words and rewrite the latter section to accommodate the above quibbles, we will surely be in business lickety-split. Sincerely . . .''