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Post Overturning Roe would be the Court's Withdrawal from Politics
Created by John Eipper on 05/12/22 5:20 AM

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Overturning Roe would be the Court's Withdrawal from Politics (Cameron Sawyer, USA, 05/12/22 5:20 am)

JE commented, on the leaked Supreme Court document potentially overturning Roe v Wade:

"How unfortunate the Court's timing, to drag in yet another controversy in these troubled times. Cameron, you lament that the abortion issue was decided in the courts rather than in the political arena. How would you respond to the polar opposite point of view--that the Supreme Court (should the leaked draft become a decision) has demonstrated that it is motivated by pure politics, the ‘litmus test' that the Trump justices skirted during their confirmation hearings?"

I don't really understand any of this. Why "pure politics"? If the Supreme Court overturns Roe, then this is a withdrawal of the Court from this political issue. Overturning Roe would not be the Supreme Court banning abortion. Note this well. Overturning Roe would be turning over the issue back to the people to decide through democratic processes, like other policy decisions.

And what "litmus test"? This bizarre practice shows how poisonous it is, to attempt to avoid democratic processes by deciding such issues in a court consisting of unelected judges appointed for life. You do that, then attempt to protect those undemocratic decisions from being changed, by blocking the appointment of judges who might be inclined to overturn them. The logical end of this is that the Court will be expanded and packed, and then re-packed, by every succeeding administration, every time the party changes. Justices will be selected not according to their faithfulness to the Constitution and legal ability, but according to politics.

Gentlemen, to do this is to wreck the main institution which protects our Constitution and to make it a merely political organ, something it is ill-suited to do. We have a legislature for that. The Constitution itself loses its quality as a law, and becomes an empty vessel into which one can pour in any policy. Democracy requires facing up to the fact, that the people will not always vote, to implement this or that policy which you favor. Those who favor abortion rights--and I favor them myself--have a host of good arguments to persuade the public that they should be protected and implemented into law. These arguments should be made clearly and honestly and with respect for the other point of view, which happens in this case to be not devoid of logic or good faith. Some compromise, understanding and common ground should be found with the other side. That is how you win votes and get good policies implemented. We call it democracy.

John further wrote:  "And what about judicial restraint/stare decisis, the supposed hallmark of a conservative jurist? Who, now, are the genuine activists?"

If I had been on the Court, I would probably vote against overturning Roe, on the basis of stare decisis. I think a balance could have been struck paring back the ludicrous excesses in the interpretation of Roe and giving back considerable leeway to the states, and striking it down completely. But Roe is a dreadfully bad case, as Ruth Bader Ginsburg reminded us from time to time, and there are good reasons for overturning it, too. Stare decisis is not a rigid principle.  It means that precedent should not be lightly cast aside; that even bad cases should be allowed to stand and should be followed except in unusual cases. There are good arguments that Roe is such a case, as was the landmark Plessy v. Ferguson case (Plessy v. Ferguson, 163 U.S. 537 (1896)), which had established that segregated schools were not a violation of the Equal Protection Clause provided they were equal in quality. This decision stood for more than 50 years before being overturned by Brown v. Board of Education (Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)). The Supreme Court has overturned dozens of its precedents, including a number of widely followed landmarks. Blindly following precedent is not indeed a "hallmark of a conservative jurist."

"Slavery has become the Godwin's Law of the abortion controversy. Both sides cite this nasty precedent to buttress their positions, not because of the strength of the analogy, but rather due to the consummate evil of the ‘peculiar institution.' If the view we don't agree with is described as tantamount to slavery, then it is wrong, by definition."

To the extent that slavery is brought into a discussion about abortion, to show in an emotional way that it is obvious that unborn fetuses are human, then it is profoundly unhelpful, because the issue is philosophically complex and can't be resolved with emotion. But lawyers discussing abortion rights in a legal way do frequently refer to slavery, because at the heart of both questions is the question of what is a human being. As I wrote, there is no objective answer to that--humanness is a social, and ultimately legal construct. We have to decide, as a society, where the unformed cells end and the human being deserving of having rights, begins, and with due consideration to the interests of the mother--this is a consummate question of policy.

I agree that this time of great polarization and hatred between warring political tribes is not a great time to be working out complex policy questions, but note that the Supreme Court did not initiate the Dobbs v. Jackson Women's Health Organization case. The Jackson Women's Health Clinic sued the state in the US District Court for the Southern District of Mississippi to overturn a state law which merely limited the performance of abortions to 15 weeks of gestation. The Clinic had a policy of performing abortions up to 16 weeks. So, it was over one week. This law was more liberal than the one in France, which, like most European countries, permits abortion only up to 14 weeks after conception. France is not exactly a Taliban type of regime which holds women as handmaids. In Denmark, also not known as an extreme, misogynistic society which oppresses women, the limit is 12 weeks. Less fanaticism and more dialogue would have prevented such a case from ever reaching the high court.

JE wrote, in response to another post: "We still don't know who leaked the Supreme Court draft, but the leading theories point to a conservative clerk who wanted to ‘lock in' the five justices by going public." "Leading theory" among whom? The only person I've heard espousing this theory is Nina Totenberg on NPR, someone I otherwise respect, but among lawyers with experience with the court clerking system, the probability of this is considered to be around zero. Another theory, that Chief Justice Roberts himself leaked the draft opinion in order to bring public pressure on Kavanaugh to flip, is equally absurd--this is just not done in this most collegial of institutions, and certainly not by someone like Roberts. Rather than "locking in" anyone's opinion, or flipping Kavanaugh, the leak rather results in what we have seen--expressions of public outrage, intimidation of justices, and calls for actual violence from "progressive" commentators, e.g. to "burn this place down":

"Seriously, shout out to whoever the hero was within the Supreme Court who said ‘f-ck it! Let's burn this place down. . . '"

Ian Millheiser, Senior Commentator, Vox https://www.vox.com/2022/5/3/23055427/supreme-court-abortion-alito-dobbs-roe-wade-voting-race

I agree with Millheiser, that the leak was obviously intended to spark public outrage and indeed, to delegitimize the Court altogether. I don't share Millheiser's approval of this, however.  Millheiser says the Supreme Court has been a "reactionary institution" for most of its history. One thing which unites the lawyers of the Supreme Court, both the justices and the clerks, and I have known some of both personally, is a deep reverence for the institution and its traditions and norms, including a deep sense of collegiality, so I doubt that the leaker was a clerk at all, but if it was, it was someone sufficiently outraged by the opinion to want to trash the Court, to "burn it down." Such is the state of our political system, the very one which we are attempting by subversion and military force to impose on the rest of the world as the world's "Benevolent Global Hegemon."

JE comments:  Cameron, I wish I could share your idealism that the Court is above politics.  Possibly the Justices believe this, and Chief Justice Roberts works diligently to maintain such an image, but does anyone seriously think that Trump's Justices were not selected because of their stance on Roe v Wade--or that overturning would be a "withdrawal" from politics?  Just look at the political maelstrom unleashed by the leak.

Lately I've been reading up on the collapse of the Habsburg Empire, which muddled along for centuries before internal divisions and warfare sealed its doom.  Is the US condemned to go down the same path?  Am I sounding too much like my friend Tor Guimaraes?

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  • US Democrats are Monetizing Leaked Supreme Court Decision (Francisco Wong-Diaz, USA 05/12/22 6:29 AM)

    The Democrats are monetizing the pro-abortion movement, having collected $20 million since the leak--a leak whose source hitherto remains unknown despite JE's unsupported suggestion. The same people who gave $$ to the hypocritical BLM scammers are now doing it for the abortions business... and a business it is!

    Read /hear, for instance, the recent disgusting racist comments of Janet Yellen regarding the importance of abortions to poor, ignorant women.

    JE comments:  Rage in politics raises more money than hope.  But I'm still on the fence about which side benefits from the leaked Supreme Court decision.  Will pro-choice candidates get a boost--or will the matter already be forgotten by November?

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  • The Republican Party Does Not Want Roe Overturned (Cameron Sawyer, USA 05/13/22 4:07 AM)
    JE wrote on May 12th: "Cameron, I wish I could share your idealism that the Supreme Court is above politics. Possibly the Justices believe this, and Chief Justice Roberts works diligently to maintain such an image, but does anyone seriously think that Trump's Justices were not selected because of their stance on Roe v Wade--or that overturning would be a ‘withdrawal' from politics? Just look at the political maelstrom unleashed by the leak."

    Well, the political maelstrom shows only how deeply the Court got themselves into politics in 1973. Now is payback time. And were Trump's justices appointed because of Roe? No, Trump, in a rare moment of understanding that he didn't have a clue about the law or judges, farmed out the selection of justices to the Federalist Society, an influential group of libertarian and conservative lawyers and legal scholars--and I have been involved in this group since its inception, and was the President of the Atlanta Lawyers' Division of the Federalist Society during the late '80s until 1991. The Federalist Society is neutral on the question of abortion--libertarians like me, who generally favor abortion rights, are well represented in the Society--but is very much interested in judicial restraint, keeping the courts out of politics and policy decisions in general. The justices appointed by Trump, and all confirmed despite the ugliest smear campaigns raised against them, were all fine choices, and join other very good justices.  The Court is in very good shape these days in terms of skill and brainpower, much better than it was in 1973. There will be many fewer decisions usurping legislatures, to unleash future maelstroms, and inspire future "litmus tests." This is good.

    One of several groups who did not want Roe overruled is the Republican Party. Republicans have been hiding behind Roe for decades, the perfect excuse for not implementing the more extreme policies demanded by their more extreme constituents. Polls show that a large majority of Americans favor abortion rights within reasonable limits, so sending the issue back to legislatures favors Democrats. Fanatics on one side have used Roe to perpetuate gruesome practices like partial birth abortions, which inflames fanatics on the other side, which deepens polarization. Now Republicans are particularly caught between their own fanatic constituents, and their reasonable ones.  They can no longer hide behind Roe.  They will be forced to take a position, and whatever position that is is going to freak out some part of their constituents. What is going to happen now is going to be very harmful to the Republican party, already reeling from internal divisions caused by the rise of Trumpism. I believe we would have much less polarization on this issue if we had been dealing with abortion as a normal political issue, negotiating and compromising and passing laws and changing laws, over the years since 1973.

    John also commented:  "Lately I've been reading up on the collapse of the Habsburg Empire, which muddled along for centuries before internal divisions and warfare sealed its doom. Is the US condemned to go down the same path? Am I sounding too much like my friend Tor Guimaraes?"

    I think there is no doubt that we are in really serious decline. I felt it sharply hearing the torrents of bile flowing out of MSNBC at my father's house last week. Our hyperaggressive foreign policy, based on maintaining Global Hegemony and subverting, intimidating, or crushing all potential competitors, still in full flower and hardly questioned by anyone despite having produced the longest string of foreign policy disasters in our history, is completely crazy.  It will inevitably get us into a big war sooner or later. I don't even think we are going to "muddle along"--this can fall apart quickly. A second Trump presidency leading to actual civil war; a nuclear war; war with China; economic depression--there are many scenarios which could lead to precipitous decline rather than muddling through. Don't even get me started on Biden's Ministry of Truth--the Disinformation Governance Board. I'm surprised we haven't discussed this on WAIS. This is truly Orwellian, and following the Snowden revelations of Stasi levels of massive internal surveillance, except with instruments the Stasi could only dream of. Just imagine once we combine our internal surveillance capabilities and practices, with an official concept of truth--it doesn't even bear thinking of; it goes beyond Orwell. I only hope we don't blow up the whole world, when we go down.

    JE comments:  Who will benefit politically from overturning Roe?  I'm inclined to say no one.  Still, there is always the "never let a good crisis go to waste" crowd. Time will tell, and meanwhile, the internal divisions in America get deeper.

    Let's shift gears:  Cameron, please convince us why the present Supreme Court is historically blessed with skill and brainpower.  A lot of us don't see it.

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