The past weekend has been one of a lot of thought. Unfortunately, some of those thoughts aren’t exactly appropriate for a family newspaper.
I love this country. But right now, this is not the country we should want … unless you’re a person who doesn’t care about freedom and rights for others, as long as you get what you want.
Funny, I don’t think that’s what was intended by the Declaration of Independence and the Constitution. But then, I guess if we’re going by the beliefs at the time those documents were written, well … let’s just say that more than women are worried right now.
I’m not a lawyer; my mom briefly wanted me to be one, but I didn’t have the passion for the law many of my friends who did become lawyers and judges had. I did take some law courses in conjunction with my political science minor, but I was meant to write, not argue in court. (And can you imagine raging introvert me having to deal with people in a courtroom??? I mean, people … ew!)
However, that doesn’t mean I don’t take an oversized interest in some rulings. Citizens United was probably the first case that I really started to worry about, and rightly so, I’d say, seeing what an influence money has had on the election process since then. People like me without vast sums of money have only our voices to try to sway people, and it just doesn’t seem enough anymore.
There has long been debate about activist judges, but without them, we might not have had decisions like that in Brown v. Board of Education. As Brandeis University’s International Center for Ethics, Justice and Public Life noted in its November 2010 Ethical Inquiry series, “Since the legislature in a democracy makes law by majority vote, it might establish laws that deny rights to minorities who lack the numbers to block passage. The judiciary’s willingness to actively enforce minority rights serves as a check on this possibility.”
Which is something to think about since the Supreme Court threw abortion back to the states (hey, those patchwork gun laws have been aces so far …).
Brandeis further noted, “In the 1958 Trop v. Dulles ruling, which forbade Congress from removing the citizenship of a native-born citizen, Chief Justice Earl Warren put forth the influential proposition that the Constitution ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ It is only natural that new situations will arise, which the framers of the Constitution could not have anticipated and which necessitate judges’ novel interpretation of existing texts.
“In a ‘Fox News Sunday’ interview, Justice Stephen Breyer provided the example of the Internet.
“Breyer referenced the Constitution’s words ‘freedom of speech’ as he explained that judges must view the law practically in the context of the real world. ‘Neither they, the founders, nor those words tell you how to apply it to the Internet,’ he said. The Boston Globe summed up his position like so: ‘Judges must not focus solely on framers’ intent, as Justice Antonin Scalia has argued — because society is constantly evolving.’”
Meaning that the spirit of the times and the needs of the nation should come into play in some instances. Had the Brown court used the same reasoning as the current court in recent decisions, segregation might still be legal, and the Civil Rights Act of 1964 might never have been passed. I’m sure there are people out there who wouldn’t mind a return to that time, but I would hope most of us would find that thought unconscionable.
So judicial activism can be a good thing, especially if you are among those who win a dose of freedom.
But what I’ve seen in the most recent cases, I think, would be the dark side of judicial activism. It would be hard to argue that the majorities in cases like Kennedy and Dobbs weren’t using their personal views about public policy in those cases (which is exactly why Republicans played the long game to stack the court, something Democrats probably wouldn’t do because they see themselves as better than the sort of thinking that only sees winners and losers).
The sniping in the rulings alone is enough to cause worry. This is not how a sober judiciary behaves.
While some may view Kennedy as a victory for school prayer, it’s not really … if you’re a Christian who believes only Christian prayer should be allowed. Aside from the fact that the ruling gave the impression that Joseph Kennedy prayed alone on that field (which he didn’t, and the fact that he was the coach lent a coercive quality to that midfield prayer), it would seem to mean that public school employees of other faiths could do likewise. I look forward to the resulting cases from Muslim, Jewish and other teachers who won’t receive such a warm reception.
Like with Nativity scenes on public land, if you open it up to one religion, all—religious or not—must be able to have the same privilege. Hey, if you really want a Nativity scene or Ten Commandments on Capitol grounds, you’d best be prepared to accommodate Festivus poles, Baphomet or Lord Hanuman statues, etc.
And then there’s Dobbs, which relies heavily on history, but not precedent, purporting to come down on the side of what the Constitution meant when it was written (a dangerous idea, considering that Blacks, women, non-landowners, etc., had no real rights then).
Carlos Lozada wrote in The Washington Post: “In his Roe dissent, Justice William Rehnquist acknowledged the majority opinion’s historical inquiry and legal scholarship; despite his disagreements, he wrote, the opinion ‘commands my respect.’ Such niceties disappear from subsequent court decisions. The plurality opinion that decided Casey warned that overruling Roe could constitute a ‘surrender to political pressure’ that would undermine the court’s legitimacy; one justice even wrote of his ‘fear for the darkness’ if his four colleagues who opposed Roe ever found one more vote. One of those four justices, in his own Casey dissent, disparaged the plurality’s ‘almost czarist arrogance.’
“Now, with Dobbs, even these characterizations seem genteel. Different factions of the high court accuse one another and their predecessors of incompetence, duplicity, hypocrisy, and untruth. The Dobbs majority opinion, authored by Justice Samuel Alito, dismisses Roe as an ‘elaborate scheme’ that was ‘concocted’ to divine a constitutional right, and assails the 1973 decision with adverbial abandon, calling it ‘egregiously wrong,’ ‘exceptionally weak’ and ‘deeply damaging.’ And while the Dobbs majority asserts that Roe’s grasp of history ‘ranged from the constitutionally irrelevant … to the plainly incorrect,’ it nonetheless makes selective use of U.S. history and tradition, and takes refuge in portions of the very rulings it has now overturned.
“The dissent, meanwhile, denounces the majority for betraying its principles and letting personal proclivities overpower the rule of law, and derides the majority’s history lectures as ‘wheel-spinning’ and ‘window dressing.’ With Dobbs, the dissent states, ‘the court departs from its obligation to faithfully and impartially apply the law,’ a conclusion it offers not with respect but, in its own words, ‘with sorrow.’”
Weaknesses of Roe aside (I agree with Ruth Bader Ginsburg that it was too far, too fast and decided on the wrong basis—privacy rather than equal protection), it would seem to me (and to Chief Justice John Roberts in his concurrence) that the Dobbs court did just what the Roe court did, and went too far.
I’ve said many times that while I’m pro-choice, I’m not rah-rah abortion (very few are); while I likely would not have chosen it for myself, my beliefs don’t mean someone else shouldn’t have the right to that choice. In her 1993 confirmation hearings, Ginsburg said of a woman’s choice on abortion, “It’s a decision that she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.”
If those without uteruses (not counting those of us with hysterectomies, which from the social media posts I’ve seen may be increasing thanks to the ruling) could carry a child, this wouldn’t be an issue.
So forgive women in red states if they feel they’re being robbed of the ability to make their own choices, and not just in the reproductive realm. And for those celebrating: You’ve moved the problem and made it less safe, not solved it. Those in red states too poor to travel to blue states will be forced underground to unsafe and non-sterile environments to get an abortion if needed (and that includes the women in those states who don’t feel safe enough to file the report of rape or incest necessary for that exemption … when it exists). Others who can’t travel will try to take care of it themselves or possibly commit suicide.
What’s that thing about unintended consequences?
Lord, I need a dose of Vitamin C(harlie) right now.