Judicial Temperament

It will come as no surprise to those who know me, and those few who follow this blog, that the shameful, shameless decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization has been on my mind. As a participant in two unplanned pregnancies I am no stranger to abortion, and it’s fair to say that my life would be quite different in a world without the procedure. I’ve joked to my friends at Planned Parenthood that the so-called right to life movement (right to birth is closer to the truth — and “forced birth,” closer still) is the best friend they have: my monthly contribution increases every time a GOP Congress (or a benighted state legislature somewhere) approves repressive legislation. I have nothing but contempt for the contemptible men and the one woman who wrote and signed on to Dobbs. It upends long-established norms of personal liberty, effectively revoking a recognized right of individuals to make their most intimate decisions without state interference.

The Roberts court — whether the Chief Justice likes it or not — will forever be known as the place where individual liberty goes to die. The three most recent appointees flat out lied to the Senate when they said, “Roe v. Wade is settled law.” Settled law is settled: it’s not up for review. What they meant is, “It’s settled law until we have the votes to unsettle it.” Well, they have the votes. They have the power. And they have upended the very first thing every first-year law student learns about principles of judicial construction: stare decisis is the bedrock on which the common law is built; if people are going to rely on the rule of law (meaning, in no small part, what a judge says the law is) they have to rely on its consistency. It can’t change at the drop of a hat, or with the shifting winds, or when the balance of appointments to the Supreme Court reaches a tipping point. David Souter, when he met with the Judiciary Committee during his confirmation hearing, made exactly this point: I might not personally agree with the decision, he said, but it is the law and a rule by which people have been able to order their lives for decades; we can’t just overturn it because we don’t like it. If only Justice Souter were still on the bench.

Let it sink in: An arrogant group of unelected jurists decided to abolish a long-established individual right. They say that Roe v. Wade was “wrongly decided” — not for its conclusion (which they abhor) but for its logic. Trouble is, that’s an arbitrary metric when we’re fifty years in. They did what they did because they could, not because of any conviction that the logic of Roe was flawed (and in that much, I’ll agree — not so much as to Roe as to Griswold v. Connecticut, which found the right to privacy not in the Ninth Amendment to the Constitution (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) but in “emanations and penumbras” around, among other things, the Fourth Amendment (searches and seizures) and the Fourteenth (applying the Bill of Rights to the states).

Let this sink in, too: the Dobbs decision very directly jeopardizes other rights we take for granted. Much has been made of Justice Thomas’s concurring opinion, suggesting that decisions establishing other rights he disdains might also now be safely reversed. These rights include things that are by and large no longer controversial: same-sex marriage, interracial marriage, the use of contraception. May he Court begin, then, not with Griswold v. Connecticut (1965) — which ensured the right to use contraception — but with Loving v. Virgina (1967) — which struck down anti-miscegenation statutes. The arc of history is long, and it bends towards karma.

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