[Intramuralist Note: Today features Guest Writer #5 in our annual summer series; the opinions expressed may or may not be held by me, but I value the writer’s expression and their commitment to respect…]
Every year on January 22, throngs of people march up Washington’s Constitution Ave., past the United States Capitol, and improperly demonstrate in front of the Supreme Court Building, yelling and screaming either their opposition or support for abortion rights and the Roe v. Wade decision that established them. This exemplifies everything that is horrifically wrong with the American judicial system.
SCOTUS, the Supreme Court of the United States, does not make laws. Congress makes laws. But these demonstrators stride right past Congress on their way to the Court Building. If they were doing their job properly, the Supreme Court justices would not pay any attention to what these people yell and scream. But they do.
Just look at the media. With the retirement of Justice Anthony Kennedy, CNN, CNBC, The Huffington Post, Politico, and The Hill are each reporting that “64% of Americans support the 1973 Supreme Court decision that legalized abortion” and “they would not like to see it overturned.” NBC now claims it is 71%.
This is completely irrelevant. It is not the Court’s job to pass laws that people want. That is Congress’ job, which is why our Congressmen and women are elected by the people. It is the Court’s job to determine if those laws are Constitutional, or to interpret them if they come under dispute.
This is basic civics. According to Article I of the Constitution, “All legislative Powers herein granted shall be vested in a Congress of the United States.” Article III says, “The judicial Power of the United States, shall be vested in one supreme Court, and…shall extend to all Cases, in Law and Equity, arising under this Constitution.” Lastly, in the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Though controversial, let us use the abortion issue as an objective example. Reasonable people can have different opinions about abortion, and it is not my intent here to argue for or against it. But there clearly is no right to an abortion in the Constitution. Harry Blackmun based his Roe opinion on the “right to privacy” in the Fourteen Amendment. Read the Fourteenth Amendment. The word “privacy” is not there. These are the words upon which the Court based their decision: “No state shall… deprive any person of life, liberty, or property, without due process of law.” At face value, those words would seem to support life more than choice.
Furthermore, Blackmun made up an admittedly arbitrary trimester framework where in the first three months, the decision lies completely between a mother and her doctor, the second three months laws can be passed only related to the mother’s health, and in the last three months, the state’s interest to protect the unborn becomes more compelling. While that may be the most brilliant compromise ever decreed since Solomon suggested cutting a baby in half, where in the world does the Constitution say anything about trimesters?
To have a staunch position on Roe, you have to read it. It is an opinion so devoid of solid foundation that it took Justice Blackmun 51 pages to explain it. There is not a single sentence in it that qualifies as a legal argument. He simply wrote his personal opinion about why he thought this would be the best way forward, then tried to justify it.
He may have been right. But that was not his job. Supreme Court justices are not wise old sages to be consulted for their wisdom on difficult issues. They are to determine whether laws passed by the legislative branch are Constitutional. Their personal opinions are irrelevant, even worse for them to be imposed upon us.
Justices quote other cases, which is appropriate, considering the importance of legal precedent. But sometimes they quote other writings of legislators who passed laws to help define what the laws mean. The problem with this is that the legislative process involves a countless number of compromises, and regardless if one side wrote about their personal opinion in some other context, only the words in the legislation that were agreed upon when the law was passed should be law. The infamous “separation of church and state” principle, for example, came from a personal letter of Thomas Jefferson’s. Thomas Jefferson’s personal letters should have no more force of law than Donald Trump’s tweets.
When justices are not bound by the words of The Constitution in their authority, they can do whatever they want. Sitting Justice Stephen Breyer is on record saying that the “Court cannot do its job without a careful understanding of foreign law and practice.” What do other countries’ laws have to do with the American Constitution? Do any of us want to be ruled by other countries’ laws? The late Justice William Brennan was even more transparent when he candidly remarked, “You can do anything around here with five votes.” That was a man who believed there were absolutely no limits to his authority.
Therein lies the problem. When SCOTUS issued its opinion on Roe, there were 32 states that banned abortion, 14 that restricted it, and 4 that had repealed bans that were previously in place. That’s how the democratic process works. Elected officials, accountable to the electorate, pass laws and sometimes repeal them. And the Tenth Amendment clearly says that all powers not given to the United States by the Constitution are reserved to the states. So when five or more justices think they know better based on any reasoning whatsoever except for what the Constitution says, that is not democracy. They are overruling the democratic process, throwing out democratically passed laws. That is dictatorship, or in this case, oligarchy, “a form of government in which all power is vested in a few persons.”
As one legal scholar put it, “We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.”
Back to Justice Kennedy’s retirement. There are factions of society that would have you believe that this is the end of the world as we know it. Why? Because there is a long list of initiatives that in spite of not surviving the democratic process have been imposed by doing an end run around the legislative branch and getting five justices to dictate them upon us.
You may be happy with the results of the Court’s edicts thus far, but what if you were not? When Congress passes laws we do not like, we can vote them out. When SCOTUS dictates their personal opinions upon us, we have no recourse.
If Roe were overturned, that would not outlaw abortion in America. What it would do is properly return that decision back to the states. The issue could be debated, and rightly so. And officials who are elected by their people to represent them could make whatever decisions they want.
That is democracy. And that is what America is supposed to be.