Who am I to question a decision of the United States Supreme Court? I’m a ninety-one-year-old lawyer who in over sixty years of practice never even had a case before the Court. I just recently had the opportunity to read the entire ninety-eight-page proposed opinion in Dobbs v. Jackson Women’s Health. I also read parts of the transcript of the oral argument. I was startled by the statement of Justice Sotomayor who said:
“Will this institution survive the stench that this (decision) creates in the public perception that the Constitution and it’s reading are just political acts?”
The average opinion runs 4,751 words or 9.4 pages. it took Justice Alito 98 pages (about 49,000 words) plus a 31-page appendix, plus 118 footnotes to strip away women’s rights to an abortion. The Court is about to reverse Roe v. Wade which is the 1973 decision finding that a Texas law criminalizing abortion violated a woman’s right of privacy, implicit in the liberty guaranteed under the due process clause in the 14th amendment and was thus unconstitutional.
The proposed decision in Dobbs v Jackson gives a number of reasons to support the reversal of Roe. It is predicated on the theory that the Constitution does not specifically mention the right of privacy. Therefore, it doesn’t exist. Nor does the Constitution mention that a woman has any right to an abortion. Therefore, such a right doesn’t exist. The opinion provides that to be held protected under the 14th amendment, rights must be deeply rooted in the Nation’s history and tradition and implicit in the concept of ordered liberty, and the right to abortion is not. It finds that the decision in Roe was egregiously wrong from the start and that it’s time to return the issue of abortion to the people’s elected representatives.
It’s interesting to note that in Planned Parenthood v. Casey, decided twenty years after Roe, in 1992, Justices Sandra Day O’Connor, Anthony Kennedy and David Souter anticipated Justice Sotomayer’s warning and said that the Court would pay a “terrible price “for overturning Roe and attacking Roe’s concept of liberty for women to act in society and to make reproductive decisions.” Planned Parenthood stands for the proposition that states cannot place an undue burden on women’s right to seek an abortion.
All of the Justices on the Supreme Court agree to the significance of judicial precedent and respect the concept of stare decisis, that prior decisions are binding on the Court, which makes the law stable. Yet they intend to reverse a case that has been the established law for almost fifty years without any significant change in either the facts surrounding the decision or the law or the circumstances of society. This alone violates precedent and the rule of stare decisis. In their confirmation hearings and interviews Justices Cavanaugh and Barrett each represented that they respected precedent and stare decisis. Did they misrepresent?
Where does the Court get the authority to review laws and determine their constitutionality?
Why from the case of Marbury v. Madison of course!
Hey-Wait a minute!
The right of judicial review isn’t in the constitution. It was created by Chief Justice John Marshall in 1803 who wrote the opinion of the Court which by dicta established the judicial review power of the Court. What about Justice Alito’s rule that if it’s not in the Constitution it doesn’t exist! Maybe he might wish to rethink the Dobbs proposed decision and find that the Court is without power to engage in judicial review based on the fact that such power is not provided for in the constitution.
I thought that I might be foolish in bringing up such matters, but someone else wrote:
“The power of judicial review will make the judiciary a despotic branch.”
“How dexterously he (John Marshall) can reconcile law to his personal biases.”
“Marbury v. Madison is continually cited by bench and bar, as if it were settled law, without any animadversion on its’ being merely an obiter dissertation of the Chief Justice.”
These were the thoughts of Thomas Jefferson. If we go back to the time when the Constitution was created in order to interpret it, we have Thomas Jefferson, in 1803, 1810 and 1823, the author of the Declaration of Independence, saying that the Court was reconciling law to its personal biases and was without jurisdiction. That’s right-If it’s not in the Constitution it doesn’t exist.
What about the results of the proposed decision? Justice Alito says that the Dobbs decision has only a minimal effect. Many disagree. Turning personal privacy rights back to the states opens up laws making abortion a crime and even leaving for a state where it’s legal, a crime. Texas gives a bounty if you report someone who has or attempts to have an abortion. There will be no exceptions to the prohibition of any abortion, not for incest or damage to the fetus or even if the mother’s life is endangered. What about states outlawing contraception. No IUD’s or prevention pills. What about states outlawing gays or lesbians and punishing them? What about states nullifying gay marriages and paying rewards to people who turn them in? This is not a minimal matter.
There will be great concern that the justices ruled based on personal bias. That their religious beliefs overrode their judicial obligations.
Then there’s the loss of respect for the Court. People will believe that the Court made an irrational, unjustified, political decision based primarily on the personal biases of the justices.
A large majority of the country has come to accept women’s right to an abortion as the settled law of the land.
People ask me “What is the solution!?”
Justice Roberts might talk to Justice Cavanaugh, even possibly Justice Gorsuch about preserving the respect for and integrity of the Court.
Then there can be a call to all Americans who feel betrayed to create enough representatives to create more justices on the Court. The Constitution doesn’t set the number of Justices and a President with enough congressional votes can increase the number of justices.
The Congress can determine the duties of the justices and might divide the Court into different specialties such as Violent Crimes, Admiralty and Civil matters, with the most recently appointed justices serving in the violent crime division.
Impeach the offending people.
Amend the Constitution. That’s pretty hard to do, but this country has been there before.
How did this all come about?
The people who feel abandoned didn’t get out and vote. One political party made it a major goal to stack the courts with young, extremely conservative judges who were vetted by the Federalist Society which preaches a textualist and originality interpretation of the constitution. In addition, one United States Senator was able to block the appointment of a Supreme Court associate justice by President Obama because he ruled that a president didn’t have the right to appoint a justice in his last year of office. That same senator reversed that rule to allow President Trump to appoint a justice at the very end of his term of office and pushed the nomination through in record time.
So, there it is. I’m an officer of the Court and I respect the American judicial system, but I’m not sleeping well at night. ~ Lewis