James D. Zirin is a former federal prosecutor for the Southern District of New York.
Four years ago I wrote a book called Supremely partisan about the Supreme Court, in which I argued that judges arrive at results left and right based not on the Constitution, but on preferred political choices. For this reason, I was concerned that this revered institution might lose public trust, as polls showed public trust in the court diminishes as decisions appear political and judges are seen as politicians in their robes.
I predicted that with a Trump presidency and one or two other Tory judges (I never dreamed he would get three picks) the court would move swiftly to expand gun rights (from all reports, they will), reaffirm the death penalty (they have done so even where prosecutors and defense lawyers have agreed that the death row inmate is not eligible for the death penalty due to a intellectual disability), and, horrible saying, possibly cancel Roe vs. Wade (looks like they will).
Today, as Justice Sotomayor observes a “scent” emanating from the partisan nature of the Court’s rulings, it reminds me of Churchill’s 1946 comment on his foreknowledge in the 1930s: “I saw it all coming and I cried out loud.
A fundamental characteristic of the rule of law is watch decisis–or “let the decision rest” – the monumental principle that judges should stick to precedents and not overturn previous decisions lightly. The principle is most strongly applicable, Chief Justice Roberts has agreed during his confirmation of charges hearings, “super precedents” or “super-precedents” as Roe deer, used by the public for almost 50 years. Although controversial at the time, Roe deer is today the preferred political choice of 60% of the American people who do not want to see Roe overthrown. In fact, abortion on demand is accepted in 72 countries, including Catholic countries such as the Republic of Ireland and Spain. Only 24 countries in the world completely ban abortion.
Judges from Breyer to Barrett, for obvious institutional reasons, don’t want to be seen as “partisan hacks.” Breyer insists that their differences are philosophical, not political. It’s hard to swallow, especially after the plea in the Mississippi abortion case last Wednesday.
The basic point is that in 1973 seven judges, including three appointed by Nixon, recognized a woman’s basic right to terminate her pregnancy during the first trimester or twelve weeks of pregnancy. As developed nineteen years later in Planned Parenthood v. Casey, this right continues until “viability”, an objectively verifiable moment when the child can live apart from the mother. Viability is now considered to occur 24 weeks after conception.
Mississippi law at issue in the case heard last Monday prohibits any abortion 15 weeks after conception. There are no exceptions for rape or incest, and no one spoke about the health or well-being of the mother.
The narrow question presented in the case was whether the Mississippi law was unconstitutional, and the Chief Justice implicitly questioned whether the Court could reaffirm Roe deer, and at the same time enforce the law.
No, the Trumpists thundered on the court, joined by Justices Thomas and Alito, who for years have been determined to override Roe deer. Let’s go for that. to cancel Roe deer and extinguish a fundamental right recognized for almost 50 years.
A boost was added by Justice Kavanaugh, who ruled that the Constitution is neutral, neither pro-life nor pro-choice, thus forcing the court to defer to the states.
Had the Court adopted this approach in Brown v. Board of Education, as Kavanaugh surmised, we would still have school segregation in Mississippi and 16 other southern and border states.
Lest anybody think this has anything to do with the law, just take Judge Barrett’s thoughts from the bench. It cannot be reasonably argued that abortion is necessary for women to take their rightful place in the workplace, have careers and break the glass ceiling. There are “shelter laws” where a woman, without legal exposure, can drop off a newborn baby in a fire station or police station and waive all parental rights. This is an adoption without formality. Barrett, who is the Court’s only mother, has seven children, two of whom are adopted. Adoption existed at the time of Roe deer. Women could still do that.
Textualists argue that the Constitution does not mention childbirth, abortion, or the time when life begins. True, but this train left the station. The Constitution doesn’t mention privacy, contraception or decency or marriage for that matter, but that has never stopped the courts from ruling on them in the past.
The originals contend that the correct interpretation of the Constitution is the original understanding of its meaning by society at the time, in Antonin Scalia’s formulation.
But abortion was completely legal in common law throughout the 18e and 19e centuries. It was not until the 20e century that it has been criminalized in some states. And it wasn’t until the mid-20se century that it has been politicized as Republicans shifted their strategy to target Catholics and Evangelicals. There are votes there, Karl Rove reasoned. If society at the time of the Fourteenth Amendment in 1868 had wanted to ban abortion, it would have done so.
Then Kavanaugh foolishly argued that the court overturned the decision by Plessy v. Ferguson upholding isolation 56 years after it was issued, then overturned its 5-4 decision in Bowers vs. Hardwicke, who approved the criminalization of homosexual acts between consenting adults, by Lawrence v. Texas 17 years later. Wait, said Scalia disagreeing, the next thing will be gay marriage. They confirmed it too. But these were cases where they overturned earlier decisions in the interest of personal freedom.
Now at least five judges could be about to overthrow Roe vs. Wade restrict personal freedom and leave the plight of poor women, perhaps sick women or women steeped in rape or incest, in the hands of predominantly male lawmakers in perhaps 26 states willing to ban reproductive rights, including many had legalized segregation until 1952. And this is America in 2021? To wonder if we are really a government of laws, and not of men and women.