What kind of blogger would I be if I didn't have a thought about this subject?
In my case the arguments on abortion before the Supreme Court last week sent me back, not to 1973, but to 1992.
It is worthwhile to note that 2021 this isn’t the first time Roe has seemed on the verge of demise. In 1992, after two Republican presidents over twelve years had made five Supreme Court appointments, there was a widespread expectation that the Court’s decision that year in Planned Parenthood v. Casey would overturn it. After all, both Reagan and Bush the elder had made a point of seeking jurists who would overturn Roe v. Wade.
A friend of mine was working for what one may call a junk mail processer at the time. He tells me that among the items of mail they processed was a call for donations from a pro-abortion rights group. The letter began, "The Supreme Court has just eliminated the constitutional protection for...." It asked for the money to fight the war in the trenches on a state-by-state level.
But the Court surprised observers by using Casey to reaffirm the heart of Roe instead. Some of those who were surprised were presumably delighted, like the authors of that letter. Some were dismayed.
The court split three ways. On the one hand, there were opinions by both Stevens and Blackmun defending Blackmun's opinion of 1973 on the substance of it, unapologetically.
On the other hand, there were two opinions from a bloc of four who would have overturned Roe had they found one more vote. Rehnquist, Scalia, White, and Thomas were all of that view. The only one of that four still with us is Thomas. White was the only one of them who had been on the court for the Roe decision.
On the third hand, there were three Justices who held that Roe should remain law, though in somewhat modified form (I won't get into the weeds there) because of the principle of stare decisis. Even mistaken decisions, they said, as a rule should be upheld because they become the basis of reasonable expectations. There were only limited circumstances in which a precedent should be overturned and this case doesn't meet them.
In recognition of her importance is reaching this result, I have put a photo of Justice Sandra Day O'Connor above.
My thought on the subject? The string has probably run out. Roe will likely not receive another such deliverance this coming spring. Heck, O'Connor and the other two who joined in that critical 'centrist' opinion look like William O. Douglas clones from this distance.
The question is whether other decisions such as Obergefell will be rescuable once this one has fallen.
I keep reading that the right-wing justices' flagrant overruling of precedent for political reasons will diminish respect for the Court. I wonder, so what? Will it diminish the power of the Court? Will the other branches decide that they do not have to accept every Court ruling interpreting the Constitution? I doubt it. Who needs respect when you have power?
ReplyDeleteCongress has an option other than refusing to accept a Court decision: It could change the structure of the Court by adding justices or imposing term limits (by making some justices "senior," rather than firing them, which would require a constitutional amendment). But this won't happen, because Democrats prefer to be walked over than to take actions that might be deemed radical.
DeleteIn 1974 a Supreme Court decision brought an end to a Presidency because Nixon could not see his way through to simply burning the tapes in defiance of a clear court mandate to release them. That situation could not play out today, because we do not have special prosecutors any more (we have tame Mueller time counsels instead) but, even more, because it has become perfectly conceivable that a POTUS in such a situation would defy the court. Power and respect are not unrelated. As "Publius" said: the court has neither sword nor purse, it has only judgment.
ReplyDeleteChristopher, I agree that a president or other miscreant would not hesitate today to disobey an order directed at him or her. But I was referring to the other branches of government deciding not to accept a Supreme Court interpretation of the Constitution. Here, for example, is how a secondary source described Lincoln's reaction to the Dred Scott decision: "Lincoln considers the binding nature of Supreme Court precedent within a system of separation of powers. He properly distinguishes between the decision itself, which is treated as final between the parties (Dred Scott and Sandford), and the precedential effect of the holding as a rule of constitutional law (the status of slavery as beyond the constitutional power of Congress to regulate). He accepts the former, but rejects the finality of the latter."
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