For what is now officially the umpteenth time, I have heard someone bemoan Roe v. Wade as an issue of “judicial overstepping.” It's become a rallying cry for the right wing. I will here answer that charge, and in so doing suggest a way to reframe the entire dialog on the question of legislating from the bench and judicial activism in a way that has applicability well beyond Roe.
In comments about Challenging the Abortion Exclusion, McGarrett50 wrote:
The Supreme Court removed this issue from the legislative process with no right of appeal... except to the Supreme Court. Catch-22. Had this not occurred, then the people would be able to express their will fully on this issue rather than having to express it through alternate means.
Although I respond here to this one specific remark, my response is really addressed generally to the community from whom I routinely hear such remarks, not just to “Steve.”
On Recourse
The suggestion made here, but not just here—one hears this kind of thing all the time—is that beyond the Supreme Court, there is no recourse, no “right of appeal..” This is quite obviously false, although it's popular for the Right to characterize it this way. To the speaker's political opposition it hints that the speaker's group is politically downtrodden, deserving of pity. To the speaker's loyal base, it is red meat, stirring the crowd into a frenzy of righteous anger that can be harnessed at the ballot box in support of changing the makeup of the Court.
The truth is that the Supreme Court sometimes rules on gaps and ambiguities in the law, filling in or clarifying details that urgent circumstances may require. In such cases, if Congress is unhappy with the outcome, override legislation can be passed. On other matters, the Supreme Court rules notwithstanding existing law, in a manner that may sometimes be contrary to what the law would seem to suggest, declaring such law unconstitutional. But even in that case there is recourse because the Constitution is a living document and is subject to amendment.
There are most certainly avenues of appeal. And, as such, this argument seems an emotional one, not based in fact.
On Time and Visibility
One might raise the issue that yes, there is recourse, but the road to such recourse is long and difficult. Congress, by design, works slowly, and so if the road to True Justice is through Congress is long. Worse still, Congress may simply not have the awareness or interest to address every matter that goes by, and so this is a path fraught with peril. Some of this I agree with, though with some caveats.
As to the matter of time, it's hard to establish any one amount of time that such corrective measures take, but I will note that Prohibition, in the United States, ran just over a dozen years and that involved changing the Constitution twice. So, independent of the ways the Constitution defines things, which establishes a kind of lower bound on the amount of time these things take, the case of Prohibition establishes a kind of upper bound on how long the matters of mere process must take. That is, even accommodating delays of a pragmatic nature, such changes can be done in that amount of time when there is a will to do it. Any additional time is not about the length of time the process takes, but is about establishing the political will.
As to the matter of awareness and interest, it's just common sense to observe that there is no risk that Congress is unaware of or has overlooked the matter or is not interested in it. It is nearly impossible to conceive that anyone can be a national political leader without forming an opinion on the abortion matter. When a candidate for high office any more claims to have no already-formed opinion on the matter, it shocks the imagination and makes one wonder what planet such a person might hail from. If there is a political topic that perfectly illustrates the notion of “political visibility,” beyond health, economics, and war, it is abortion. And so to fear that Congress would not at least take note of a Supreme Court ruling that it felt unjust is implausible.
Judicial Activism
Modern politics seems all too often to reduce to mere sloganeering. The terms “legislating from the bench” and “judicial activism” have been coined in recent years by the political right as ways of highlighting rulings they don't like. Many times when such a ruling appears, rather than address the merits of the ruling, they prefer simply to dismiss it.
The notion that judges have a particular authority that they must not overstep might even be a rational political theory if applied uniformly, but of course there are cases where the situation goes the way they like where the same group turns a blind eye to concerns about legislating from the bench. The strong tendancy is to assume that in the case where the outcome seems to match their own opinion, it must be right and neutral. This may not always be done deliberately or cynically, but opposing sides in any given political discussion may see things very differently.
Einstein put it this way: “Common sense is the collection of prejudices acquired by age eighteen.” We all have different upbringings, and so different sources of ”common sense,” and so what seems to us to violate common sense may be more of an indication of what is not common among us in the first place.
As a neutral analogy, consider an observation about language. It's common for members of a certain group to poke fun at the pronunciation of other groups. (“You like tomato, ...”) Language is learned by observing those we see early on, in our formative years, who we come to regard as normal, and it's easy come to regard others we later encounter as deviating from the norm, as “having an accent.” It's common to reject the notion that we ourselves have one. In fact, all people have accents, but it's just hard to hear one's own.
And so it probably is with Court rulings. Many presently consider that the US Supreme Court is engaging in judicial activism, but people on the right don't see it. So is it there? It's hard to answer objectively. However, I'm going to argue that it is no longer necessary to know in order to answer the political question posed by Roe v. Wade.
A Hypothetical Concession, for Purposes of Debate
In fact, let's suppose, just for the purpose of what remains in this article, that legislating from the bench does exist and is a bad thing, and let's even suppose that it's what happened in the case of Roe v. Wade.
Note well—I am not granting, not even for this hypothetical, that I disagree with the effect of the ruling in Roe. There will always be people who both agree and disagree that it's a just ruling, so I might as well be honest about the fact that I think it was, in fact, a just ruling. But that's not my point. My point is that even if I agree with the ruling, I don't have to agree that it follows from the Constitution or the law. I might think the court trying the case just made it up out of nowhere. There are many people who believe that. I happen not to believe it. But for the purposes of this article only, let's assume that it's just objective truth that the court was overreaching inappropriately in making this ruling, and that this is agreed by all of us to be a textbook case of legislating from the bench. Let's see where that leads.
I'm willing to do this because I want to make an argument for why Roe should stand that doesn't depend on whether it was judicial activism or not. I want to make the argument, in fact, that our political system allows for people to be human beings, even human beings who have political biases. And so I'm going to grant this controversial point for debate purposes, to argue that it doesn't actually matter, and that in fact any attempt to raise the issue of judicial activism when talking about long-settled matters is irrelevant.
Conservative Readings
“But it's not settled,” I can hear some of you say. “Many of us don't agree even to this day that abortion should be legal, we don't agree with the ruling, and we don't agree with the rationale for the ruling.”
Well, all of that may be, but this now becomes the core rationale behind stare decisis as a legal principle. Informally, stare decisis is the notion that what has been decided should stay decided—or, at least, tend to stay decided unless circumstances change materially.
As I researched this article, I was interested by a quote from Justice Antonin Scalia on the matter. According to Wikipedia, Scalia has opined, “Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law.” I agree with Scalia to the extent that it would be ideal to have legislatures be the ones to make law, provided it's within the scope of the Constitution, though I don't think it follows that judges have no discretion to fill gaps. We'd not even have Marbury vs. Madison without that. To me, the principle of stare decisis seems one of the most stable ways of filling gaps, far superior to having a judge make up a theory that is in conflict with the status quo.
Wikipedia goes on, presumably still summarizing Scalia's point of view, but no longer as a quotation. Here I quote Wikipedia, therefore, and not Scalia, although I assume this to be Scalia's position: “However, there is still room within an originalist paradigm for stare decisis; whenever the plain meaning of the text has alternative constructions, past precedent is generally considered a valid guide, with the qualifier being that it cannot change what the text actually says.”
This is reminiscent of the position taken by Robert Bork in his The Tempting of America. I listened to an abridged audiobook of this text some years back with considerable interest, and even for a while thought that he might be correct in his analysis. His premise seemed to be neutral on questions like abortion, and instead seemed to suggest that we would all be better off if the Supreme Court made its findings on the basis what was written in the law and nothing else.
Following with that idea just a bit further, for example, I took Bork's point to be that even if you believed that the nation should be a pro-choice nation, it was important for the court to rule as if there were no such right simply because there was no text in the Constitution to say otherwise.
On Strict Construction
At first when I read Bork's analysis, it seemed right. Why not just write things down so they are plain for all to see? It would be hell to change the world over to that model, but perhaps it would indeed be easier if people really did just write down what they meant in detail and not leave things to chance.
Well, for one thing it's hard to guess what things need to be written down. As I recently wrote in another post on The Elusive Nature of Fairness, it's difficult to actually codify such matters fairly. So maybe it would be a little bumpy under Bork's system because, realistically, there would be many cases where legislatures wouldn't think of the right things to codify into law until after they were needed. But the devil is often in the details. Even when the law had tried to anticipate a certain case, the fact pattern would be different the next time. And the core of Bork's theory, although he probably wouldn't put it this way, is that judges should not exercise judgment. That seems kind of odd. Perhaps we should call them “mindless automatons” while we're at it.
But beyond that, under Bork's theory, the Supreme Court should generally be issuing some ruling, whatever the ruling is, and implicitly finishing with “If you don't like it, you'll have to change the law or, in some cases, the Constitution.” The clear implication, since he knows as well as anyone how the rules work, is that, no matter the outcome, Congress always has the option if it doesn't like the outcome of overriding the ruling by Congressional action. Surely neither he nor Scalia is proposing changing that. After all, to quote Scalia, “only the legislature may make law.” So we may assume, after a period of time, that if the Congress did not like the outcome, it would change the law. And if not, it would leave the law alone. But in either case, if I read Bork correctly, there would be no issue that strict constructionism could hurt because if it ever led to an outcome that was unwanted by the People, recourse exists to remedy that through the Congress, and ultimately because the Congress is elected, through the People.
Well, it should be obvious from this that the same situation is true even if the Supreme Court does not follow strict construction. Even if they commonly generate the opposite ruling of what is seen as right by any given side of the political spectrum, they are a source of authority only for a limited—though admittedly quite bumpy—time on any given issue. Ultimately Congress has the final say. If Congress likes the ruling, Congress will allow the ruling to stand. If it sufficiently disagrees, it will take action to either clarify legislation or, in rare cases, amend the Constitution.
Independent of the issues of originalist paradigm, I don't think I'd like to live in a world based on strict constructionism precisely because it would seem constantly full of turmoil, with the primary job of the legislators to be always saying “They inferred what?” and then racing to patch their legislation with little fixes because there would be no end of misinterpretations. I don't think the goal of unambiguous text is achievable, nor perhaps even a good idea.
A Self-Correcting System
If you listen to their rhetoric, what seems to bug the strict constructionists and originalists—they don't usually express it this way, but I don't think this misstates their position—is the arbitrariness of individual interpretation. That is, they appear to worry that if a judge is allowed to decide based on personal preference, then the interpretation of laws will be essentially random, since it might be random who is in office at the moment something is decided.
We may certainly infer that in a world with judicial activism, the day after an activist ruling, the world is in a funny state, where Justice has not yet really prevailed. A world that allows this kind of complex process is going to have delays and will have periods of inconsistency. But certainly, hundreds of years later, if nothing has changed, one must infer that the world wanted something a certain way. So the question is where the change occurs from temporary to permanent, and the line is not really clear. Still, I would argue that it's not hundreds but tens of years that matter.
Had the Prohibition, for example, been established by an activist Supreme Court, we can see that the problem could have and would have been resolved within a much smaller number of years. And by resolved I don't mean that every person in America agrees. Some to this day probably believe alcohol is wrong, just as many believe marijuana is not wrong. But there's no disagreement on what the settled law is on the matter. Society has an opinion on the subject, and the task of either group is to change society's mind, not to attempt some procedural trick that says the law never was as it was.
As I noted earlier, the designers of our political system did not build into it the notion that our leaders had to be paragons of virtue. Instead, they built in an understanding that people would be petty, nasty, selfish, and corruptible. And so they put their trust not in the notion that we would elect just the right people, the ones capable of resisting temptation, the ones honest and pure enough to never use personal discretion. Such people do not exist, and the presence of heavily biased people on the present Supreme Court who counts themselves champions of this paradigmatic fantasy is proof that there cannot be an objective middle ground. What we need are processes that are constantly under review, not people who are pure and clean and perfect. The reliance on people being a certain way and actions being a certain way as the guarantors of our liberty is by far the weakest part of Bork's argument, and is ultimately why I have come to disbelieve him.
On Stare Decisis
And so we finally come back to the case of Roe, decided so long ago. It is commonly inferred that stare decisis is somehow a prescriptive power, stating that there must not be a change in ruling because of the mere fact of time passing. That's not quite the best way to see it, I think. Rather, I think stare decisis is a descriptive term, which highlights the fact that legislatures have been given the opportunity to take corrective action and have not availed themselves of the need to do that.
Going back to my earlier point about objective truth, there may indeed be no objective notion of what is a good or bad ruling. So what, then, if Roe had been ruled the other way. “Then,” I hear pro-Life advocates say, “the world would be a better place.” If by that you mean that still today abortion would be illegal, I think they're mistaken.
There is a concept of hysteresis which you might imagine that somehow modern politics adopts, and you could say stare decisis in some ways captures that notion, though it requires a different theory of causation to parse it that way: Rather than saying society likes stare decisis because it makes the rules stable and easier to plan with, you'd have to say that we're just lazy or change-averse and will pretty much settle into a rut with any old situation tossed our way. I'd like to think that as a society, we're not that feeble—though I know a few of my regular readers will be quick to correct me on that point.
Perhaps the pro-Lifers envision that if the ruling had gone the other way, we would have just stuck with that, too. That certainly sells us as a do-nothing populace, and I suppose that's possible. But it's been three dozen years since Roe. Both Republican and Democratic Congresses and Presidents have come and gone. That's more than enough time for things to have changed, and yet no change has come. At some point, we must infer intent from that inaction. It is not sufficient to say that that this matter has been overlooked. It is not sufficient to say that the majority wanted change, yet took no action. There is indeed a committed minority that wishes it were otherwise, but that minority has not succeeded in changing the minds of the majority, and at some point even they must accept that while they may continue to believe as they like, they do not enjoy the right to claim their view as the majority will of the people.
And even were there to be a change to one day make things “the other way,” that would not mean pro-Life community suddenly enjoyed the moral authority to claim righteousness. There are many paths to such victories, some by legitimate of public opinion and some by procedural machination. What it would do would be to give notice to the opposition that they'd better take action to rectify the situation because it would otherwise restart the clock on stare decisis for the matter. A shift in policy in the other direction allowed to stand for enough time would come to be settled law. But a brief breach would be just an aberration.
The moral authority that stare decisis confers is not gained overnight in other words. It is built up over a long period exactly because it's easy to pull a coup involving long-settled law: Those comfortable with the majority position are often not on guard, comfortable that their way is the established way. Were that to change, the sleeping dragon of majority opinion would finally awaken and then we would find out the truth of the matter. I hope it doesn't have to come to that.
Conclusion
I hope my point is made, which is this: Roe v. Wade has existed now long enough that its opposition no longer enjoys the right to claim it was due to some procedural trick. It was not made under cover of darkness. Or maybe some people think it was, but those people can certainly not argue that it has remained out of view. It is visible. Notice has been brought to those who object that if they need to make a change, they should. Three decades have passed. Small changes have occurred, but the basic rights have stood, not by accident, but by concerted effort of a majority who insists on those rights.
There has been adequate time for due process, and no override of either a Congressional or Constitutional nature has occurred. I don't mean by this to claim there is no longer opposition, but let's at least agree that Roe is at this point in history no longer merely something that happened once and was subsequently unsupported by society. Rather, let's agree that the entire reason that Roe has been allowed to stand is that it is supported by society, at least collectively. Individually, we will never all agree on much of anything, but if we cannot agree that our political and legal processes are the ultimate arbiter of what we collectively believe, then we have really no nation whatsoever. It is at this point in a discussion being won by Republicans that one would often hear the catch phrase “America—love it or leave it.” I might instead end with, “America—live with it or exercise your due process to make change in it in an orderly way, and meanwhile live proudly with the fact that it is what it is.” It's not quite as punchy, I guess. I'll work on that.
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Comments
The irony for me in Scalia's statement is that a) he's constantly practising his own forms of judicial activism. And b) when it comes to the abortion issue, abortion was still legal in 1789. It was not criminalized until the 19th century, so to claim that abortion is not allowed by the Constitution is bunk.
Scalia is a fundamentalist. I interpret fundamentalism to mean that words are read literally. Thus, a fundamentalist, if they were truly living the literal words of the Bible, would never shave, never eat shellfish or pork, etc. The fact that fundamentalist Christians pick and choose what they're going to be fundamentalists about is telling.
Your argument is very good, Kent. It is true that the "silent majority" has had a long time to move against abortion, to even pass an amendment, but the truth is, they don't have the votes to do it. Their only recourse lies in the very courts they constantly denounce, and they themselves openly declare that they are waiting until they get the right balance on the court so that the law will once again swing their way.
there is no call for logic here, just push and shove for wealth and power. 'roe vs wade' is intrinsically important to many religious people, but i would give their concerns more weight if they were equally concerned about bombing pregnant women in iraq or afghanistan. hypocrisy necessarily rules, on the 'right' as they are wrongly styled, since greed, arrogance and lust for power is their common characteristic.
when america's major laws and policies are set by referendum, we will know what the will of the people is. until that happy day, we only know what the head pirates think is best for themselves. ordinary morlocks are entitled to think their will has not been asked, and consequently they are likely to react with vigilante law, as they do.
FLW, that's surprising about Scalia—what does he say about the 9th and 10th amendments (which seem to me to be custom-designed to pre-refute him)? You're right, too, that they're waiting for the Court control because they'd rather not bring it before the people, lest they lose. Also, you don't know what Scalia says on Marbury v. Madison, do you? I can't see how he would think he can be as invasive as he is in things without foundational things like that.
Al, are you in fact a populist? I've been struggling to figure you out. And surely populism is not a call for logic either—it's an acknowledgement that whatever people decide is what should happen, notwithstanding logic. So I don't see how you can criticize the existing system over populism, which you appear to be doing. What I had expected you to say, which you didn't say, was that it's the people who can't be trusted to do their part in overseeing government. What surprises me is that your suggestion appears to me close to the opposite. I thought one of your perpetual pitches was that people are apathetic sheep/cattle, moving in herds, unwilling to express themselves; in effect, I expected you to be the champion of the hysteresis hypothesis, which I really can't see justified by any means other than that. Why would that change under a formalized referendum system? Wouldn't that just intensify the amount of randomness?
I don't think anybody is claiming that the Constitution prohibits abortion.
The claim is that the Constitution says nothing about it, so it's an ordinary topic, which by default is left to the States. Each individual State (legislature) can decide for itself, what law it wants to make on that subject, within its boundaries. Just as it decides about sales tax, for instance.
Roe v Wade makes the affirmative claim that the Constitution prohibits any State from making such a law, that a State which chose to make all abortions illegal would necessarily be violating the Constitution with such a law.
At the least, you need to admit (regardless of what you think about abortion itself) that the text of the Constitution is far from clear that all such State laws are necessarily unconstitutional.
The question is no longer whether it is supported by society, as it clearly is supported. The question has to be “WHY is it supported?”
It is supported because opposition to it is based on something that is unknowable. Therefore, the decision to abort a fetus is a personal life decision, not a matter of law anymore than removing a tumor is a matter of law. The debate becomes framed as a matter of “when does life begin”, which is a question for which we do not have THE answer, but many answers. This is why so many, who do, in fact, think abortion is wrong, also recognize that it must be a personal healthcare decision, not a legal matter.
The most vociferous opposition to abortion is from religious groups, and politicians pandering to those groups do so mainly because those religious groups represent a large bloc of voters, but even among the religious Americans, there is no consensus. Legislation must not be based on the religious views of one group of people. Members of a particular cult that opposes abortion are free to not choose abortion, but their cult’s views must not be legislated into public policy.
Going back to your point about stare decisis, it is especially intriguing that, in terms of human history, abortion has been legal far longer than it has been illegal across most cultures. Even here in America, attempts of criminalize it have never met with acceptance on a large scale, and the time for which abortion was flatly illegal was relatively short, and then overturned, much like your example of Prohibition.
On the minor topic of hysteresis, I think you dismiss the anti-abortion complaints too quickly. You write: "Perhaps the pro-Lifers envision that if the ruling had gone the other way, we would have just stuck with that, too. That certainly sells us as a do-nothing populace"
But I think there's a legitimate gripe here. You can imagine that a (slight) majority of the population prefers anti-abortion, but the court in Roe overruled them. On Constitutional grounds! So you can't just fix this in Congress. You need an amendment. But that's a much higher bar than simply having a majority vote. It could easily be that a majority of the public prefers the other outcome, but not a sufficient supermajority, to pass the procedures required to overturn the court's decision.
In this world, if the court had happened to rule the other way, that decision would have stood too. Because then the pro-choice folks also would have been unable to muster the 3/4ths of the states required for a Constitutional amendment.
You suggest that hysteresis only comes because of a "do-nothing" population, or else because only a "committed minority" wants the change, and they've been unable to convince the majority. But that undersells the power of the original decision. It requires more than a simple majority to undo a (Constitutional) SCOTUS decision. It is more that: a committed minority can prevent a controversial decision from being repealed.
So, if Roe had gone the other way, it may well have remained in that state for decades also. I don't think that's an absurd belief to have.
(All that said, I like the overall thrust of your article.)
Whether or not it is left to the states depends upon how you define “ordinary topic”. Are there any issues that are not specifically mentioned in the Constitution but that are removed from states’ authority?
Nonetheless, if you're asking my opinion, as someone who is not a legal expert, I'm actually pretty convinced that the original decision was a poor piece of legal reasoning, basically misusing text to rationalize a decision that was really a political compromise. If you could somehow separate people's desires for a particular outcome from their legal judgments, if you could just ask a straight "contract law"-type of question: "does this contract [the US Constitution] prohibit that activity [a State law about abortion]?", I bet not one person in a hundred would agree with the Roe decision.
And I say this, as someone who is so pro-choice that I think adult chimps and dolphins ought to be offered more rights than newborn human infants.
Nonetheless, I appreciate that you disagree with me.
Ah! Well put. Yes, that's a nice concise way to describe what I was trying to say. (It comes to the right conclusion, for the wrong reasons. :-) Roe would have been a fabulous piece of law to come out of Congress.)
There's supposed to be this thing called State's rights, enforced by the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
As to whether, in practice, this division holds ... well, that's a different question. The Federal Government has been very clever about using money to bribe outcomes that the Constitution doesn't give them power to do. For example, the drinking age is 21 ... because the Fed threatened to withhold interstate highway funds from any state that didn't enact such a law. So, they cheated. The legal drinking age ought to be a matter left to the individual states (according to the Constitution), but in practice the Federal Government forced the states to do what it wanted.
You ask, “… within the scope of the stare decisis analysis, you don't suggest that the “why” has a place, do you?”
My comment was more of a general statement about the entire abortion debate, not actually referring to the stare decisis analysis, but since you ask, …
I may not fully understand the concept, so let me know if you see evidence of that, but I can’t see why the question, “Why?” could not or would not be considered. If the law is a living, changing entity, then it seems the question would always be present, anyway. Some issues may appear settled, but then new knowledge becomes available that challenges that settled state, at which point, new legislation may not be necessary; merely new interpretations of already written law would be, based on that new knowledge.
In the case of Roe, it seems that the “settled” aspect is based on precisely just such a point; “why should abortion NOT be illegal?” It seems the answer is because we do not know when life begins, so we can’t unquestioningly call a fetus a “person” deserving of rights, and so we must protect the right of an individual to make such a decision for herself. So, it seems to me, the issue is a matter of individual rights.
As you point out, sometimes new interpretations by judges lead to new legislation. My understanding of the concept of stare decisis indicates that one factor that might lead to such new interpretation might be something that challenges the “why”, the basis, of the accepted case law, regardless of how long that case law has stood.
Does that reveal a lack of understanding of the concept of stare decisis?
I guess what I’m looking at with Roe is the idea that since it is a matter of an individual’s right, the specifics may not be listed in the Constitution, but may be “interpreted” as being protected under the general protections listed there. Wouldn’t that fit with the Roe decision?
Stare decisis is purely an argument that you should defer to standing decisions rather than make new ones, all other things being equal. (There is an argument that circumstances have changed, but that argument appeals to “science” in the sense that it uses a scientific term, out of context, as if science were driving the day. But the term is out of place, and the entire matter is really a religious matter, and is unchanging because the religion is unchanging. The fact that science has changed is an irrelevance that is used opportunistically only because the outcome appeals to them, not because they are genuinely committed to a scientific analysis and where that might lead.) Insofar as things are unchanged, the whole point of stare decisis is to allow the world to plan on things. Businesses need to invest, so they need to know “can we hire women?” and they find this out by knowing whether their lives can be co-opted by having sex; it used to be, before Roe that women had a hard time being hired because they might drop out at any moment to be mommies. This is the reason I don't think it's immaterial to consider this in the context of slavery or rape. A woman without Roe or the equivalent cannot plan her life, and is at the mercy of her captors. That doesn't happen any more, and women like to plan on that. That's a practical example of the application of stare decisis.
Will Roe ever be overturned? I doubt it and that's a good thing in my mind. Still there will be those on the right that will try to pick away at it with things like the Stupak-Pitts Amendment and try to backdoor the system.
If RvW needs to be further discussed, it should be done as a stand alone issue and not be slipped in at the eleventh hour on the back of another legislation. Of course Stupak has backed down and my guess is that the amendment will be removed, but still it's sneaky. I just don't like sneaky, though I know it happens all the time in Congress.
I wish you could get every pro-lifer to read this, but still I doubt that it would change many minds on that side. They are unyielding in so many ways.
Although I believe in the confidentiality of medical documents, what I do wish, is that records where kept at abortion clinics that highlighted political affiliation or pro/anti choice statistics. I would guess that many a hypocrite would be discovered.
I've just spent a half hour reading and absorbing the comments on this and you guys are all way over my head, but it sounds really good!
As to the issue of stare decisis, it's become a popular issue to discuss in Supreme Court confirmations. Candidates are always now asked how they stand on that.
And on the matter of getting pro-Life folks to read this, you're right it may change few minds. But there are public debates, and my hope is more modest: to arm people who don't know what to say or think with frameworks on how to analyze this. I've done this now from a number of points of view. I am trying to begin with questions and work through them as honestly as I can. I'm not trying to spread dogma. I'm trying to explain why I have come to the reasoned decisions I have, in case that matters to others.
This 'the place of a judge is not to make law' bullshit is the most disingenuous, evil trick played by the shady right wing. The judiciary has stood, and has been designed to stand, as a vital and LEGITIMATE branch of government...protecting the interests which would be lost if all questions were decided politically.
The injured little voices of those who complain of Activist judges evince an odd paradox - they claim victimhood because they were deprived of the chance to use their numbers and popularity to steamroll over the rights and needs of the few - and the principals of our nation.
Historically, the Supreme Court's decisions have more often been lagging indicators of history, rather than leading indicators. The Warren court was somewhat unusual in providing some groundbreaking decisions. But this was done on a careful reading of legal precedents.
"I agree that it is possible and likely that society would reach some compromise position that is neither unlimited abortion nor total ban. The place for that compromise to be worked out is through the legislature, not the courts.
Assuming someone does not buy the Constitutional argument that Mishima makes, there is a practical argument that ties back to a point in your post. The legislature gets the benefit of applying new information when it becomes available. So, new science can allow legislatures to adjust the law.
Also, using the legislative process allows for people to be able to persuade each other and express their changed opinions through changed votes for representatives.
And, if at some time, society achives such a consensus that the people want to remove abortion from the sphere of the legislature (just as free speech is), then a Constitutional Amendment can be passed. But, even then, it is the people who choose to remove the issues from majority rule instead of the courts removing it."
What I would add to this are:
-To elaborate, the original set of rights granted under the Bill of Rights were actually a statement *by a super-majority of the people* that certain rights were beyond the sphere of normal 50% majorities. However, when the Supreme Court invents a right, they do not represent the people and do not even have to achieve a super-majority among themselves. 5 to 4 suffices to invent anything they want.
-If I understand your argument correctly, then why should Plessy v Ferguson have been overturned by Brown v Board of Education? Legislatures had not seen fit to counter Plessy for 50+ years, quite a bit longer than we have lived under Roe.
-As an historical matter, Roe v Wade was unnecessary to achieving the compromise because states had already begun liberalizing their abortion laws. Ronald Reagan signed a law to legalize abortion in California while he was Governor. He regretted it but the fact is that the state should have had the right to make it legal or illegal because the US Constitution is silent on the issue and therefore each state has authority.
- The issue of Roe was decided 7-2, although I know you weren't speaking of it when you mentioned 5-4. I wouldn't want anyone to be confused. I do take your point that there is a possibility of abuse, but on the other hand I claim that in the abuse cases, the legislature is well-motivated to take corrective action. It is admittedly harder, but after 36 years... well... at some point you have to say the population is not fighting it very hard.
- I agree Brown v. Board of Education elected consciously to override Plessy's ruling, and to go against stare decisis. Stare decisis is not the law of the land, and I'm not saying it can't be overridden. But to override it, you have to claim you have a new understanding, not an old one, due to changed circumstances. But the circumstances of Roe haven't changed, materially. The situation was well-known to be politically charged then as now. In spite of what hoopla has made about changing viability, the gestation period in women has not changed and babies don't survive better out of the womb without help than they ever did. So the issues are the same and to change things, you have to at minimum offer a basis in why the decision now would be different than than other than just who was in power. There was reason for the separate but equal to change because society itself had changed. I think at minimum if you wanted to claim the societal bent had changed on abortion, you'd want to show careful and neutrally administered statistics with a reasonable reason to be believed and taken over a long period of time. I don't see it. I see a lot of political posturing and opinion tied up with other votes that makes it impossible to tease out.
- As to why this is relevant to the federal courts, see my remarks about the tenth amendment higher up in this discussion.
Thanks again for participating. Much though I disagree with you, I genuinely appreciate the rational and organized nature of your presentation. Open Salon needs more of that.
I don't think the 10th amendment applies here, as this wasn't an act of Congress in "violation" of state's rights. (Enumerated powers still must bow to Necessary and Proper, which expands the powers of Congress beyond those parameters.)
Roe was decided on the basis of the Constitution, addresses the rights a woman has, and tangentially the rights the states have based on an interpretation of civil liberties.
It doesn't leave the states with no decision making power, as it draws a line between 2nd and 3rd tri "viability." States are free to legislate that which is left for them to decide.
Scalia's "originalist" doctrine would apply what Jefferson, I believe, described as an enforced "ancestor worship," where future generations are bound to their ancestor's perceptions of propriety. Personally, I think it's a steaming crock of crap- a political attempt at justifying arbitrary and very much political decisions.
As to State's Rights, Scalia and his cohorts developed a case of amnesia in Bush-v-Gore, deleting Florida's clear prerogative to decide their own elections. In fact, the ruling in that case describes a severe case of Constitution amnesia.
I distrust all the Federalist Society justices on the SC. I think that too often their membership in that wealthy right wing funded group makes their loyalty to the Constitution secondary to political group-think.
Good post and reasoning, Kent. Enjoyed reading it.
As I read Roe there are several distinct components:
1) a finding that the woman has a "right to privacy" that includes the right to terminate a pregnancy.
2) a finding that "a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision."
3) the conclusion that "the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation." The Court also noted that "it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly."
4) There are various theories of life, and though "the unborn have never been recognized in the law as persons in the whole sense," there have been cases in which the unborn have been treated in some sense as persons (e.g., parents of a stillborn child could bring a wrongful death action because of prenatal injuries).
5) "Each [state interest -- protecting the health of the mother, and protecting the potentiality of life] grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes 'compelling.'"
Now at this point the Court could have stopped and simply said that it was the job of the the state legislatures to determine how all of this should play out with respect to the timelines and situations in which abortion would or would not be permitted. All the Court has done so far is to articulate general principles that would govern such laws, and the state law in question would have been struck down as being overly broad. Note that all of these principles are "timeless," so to speak. They could apply today or a hundred years from now. We may agree or disagree with them, but I think we would all agree that they are not contingent on any particular set of facts or information or technology.
But then the Court goes on to define in detail the "compelling points" at which the state has an interest in protecting "potential life." In other words, the "trimester system." And how is this determined? "[I]n the light of present medical knowledge . . . "
See the shift? We go from timeless principles to present medical knowledge. I'm sure you would agree that medical knowledge changes over time. But with the Court's decision, "present medical knowledge" basically becomes the law of the land, frozen in time, regardless of how medical knowledge may change or develop in the future.
And this is exactly why the state legislatures should make these decisions -- to do fact-finding, to decide what is current knowledge, and to adapt laws that reflect current knowledge. But the Supreme Court decision removes that ability from the legislatures.
In summary, my point is that Roe v. Wade doesn't have to be wholly accepted or rejected. One can accept the general principles articulated in Roe, while at the same time asserting that the determination of the "compelling points" should have been left to the states.
I don't see "present medical knowledge" as freezing that at what was then "contemporary."
I read it as relating to the time it's read.
I'm sure state legislatures could challenge it on that basis. Whether or not that challenging law intrudes on basic rights could be litigated up the chain.
Whether by coincidence or SC contrivance, the limits described in Roe have popular support. The pro and anti numbers reverse at that 3rd tri point.
That laws have popular support is extremely significant in a nation governed by majority will contract. When laws are made that have wide unpopularity, the will to ignore that law increases. That rejection leads to a distrust of laws in general, to some degree.
That the SC sets the bar for our civil liberties, trumping state legislatures and even Congress, at times...is a worthwhile function. If our rights are to be recognized in all states, as contractually mandated, then the description of those rights MUST be decided at the Federal Level.
That's how I see it.
But Paul, isn't that why we have a representative democracy, and state legislatures? People vote for their representatives, and if the representatives create unpopular laws the people can vote the rascals out. No one votes for the Supreme Court, and if people don't like the decisions they can't vote the rascals out.
Legislatures write laws, not rights. A civil right must be consistent in every state, but the laws can be different. Some states might decide to legislate strictly to the right, some may choose to go beyond that to a more expansive law. As long as those laws fall within the boundary of the right, all's well.
While striking down an unconstitutional law has much the same effect as writing a law, it's not the same thing. It does often send legislatures back to the drawing board, and informs other state's law makers as to the now defined boundaries. How those rights are defined depends to some degree on the opinions of those SC justices deciding, as it's not always a clear mandate.
The only time the people, through legislatures, decide rights is in the Constitutional amendment process.
So, two different animals.
I do wish people would give more consideration to how elections influence SC appointments, but the lifetime nature of a SC justice is supposed to keep them free of political influence. If that were always the case, we'd be better for it.
I started writing my comment while watching Seabiscuit on PBS. So, it took a while to complete. I see we both hit upon a similar response.
As a strict constructionist, I can confirm that you're correct that arbitrariness is the primary issue. We are guaranteed a republican form of government, not an arbitrary tyranny through which a super majority must overturn encroachments on our rights instead of the other way around. The Constitution provides a method of amending itself, and it's purposely very difficult to do! We cannot have the court amending it arbitrarily which then requires a super majority of the legislature to reverse.