All the pro-choice advocates in my circle are in a “mad as hell and won’t take it anymore” mood, nearly apoplectic with rage at the leaked Supreme Court draft opinion suggesting an overturn of Roe vs. Wade. How dare this politicized court take the radical step of upending 50 years of settled jurisprudence.
But 50 years ago, it was the pro-life crowd aghast at the direction of a politicized court issuing a radical opinion. Roe vs. Wade, after all, found a fundamental right to an abortion nowhere mentioned in the Constitution and usurped debates that were taking place in state legislatures across the nation.
And so it goes.
Liberals today are furious because, thanks to President Trump’s three appointments, conservatives will be able for a couple of generations to turn to the court with their agenda, accomplishing judicially what they can’t get done legislatively. They choose to forget that such militancy is a reaction to the liberal activism that saw a progressive agenda move around the legislative branch for a couple of generations. Anyone recall those “Impeach Earl Warren” billboards that once littered the landscape?
The plain truth is that Supreme Court justices are not superhuman. They are subject to the same flaws and prejudices as the rest of us. They might pledge loyalty to the Constitution or feel allegiance to a principled philosophy, but they cannot be unaware of public opinion, social trends and the political climate in which they operate. They might like to pretend they are above reality, but they cannot escape its effects.
And, yes, the court has too much power. It always has, almost from the beginning.
Blame that on William Marbury, a politically connected businessman named a justice of the peace by Federalist President John Adams on his last day in office. But Marbury’s commission papers were never delivered, so incoming Democrat Republican President Thomas Jefferson ordered Secretary of State James Madison to withhold them.
Marbury sued, and the case went to the Supreme Court. In a master stroke, Chief Justice John Marshall in 1803 denied Marbury’s appointment, saying the court did not have jurisdiction, but did assert the court’s right to rule on the constitutionality of all legislative activity. Like it or not, our-day-to-day lives have existed in the shadow of that decision ever since.
And the court has never been afraid to flex its muscles. Justice William Brennan was said to be fond of showing his hand, five fingers spread out, and saying something like, “If I get four people to go along, I can do anything.” He was apparently speaking in jest, but he wasn’t wrong.
For now, the court’s enormous power will remain, with one side complaining and the other cheering, depending on whose ox is being gored at any given time. Perhaps one day, there will be a decision so obviously wrong that both sides will reunite in an effort to curb that power.
To do what? Establish term limits for justices? Make it easier for the Constitution to be amended? Super pack the court, with say two justices appointed from each state? (If it insists on behaving like a legislature, perhaps it should actually be like one.)
I don’t know, which means I am violating a cardinal rule of opinion writing, which is: If there is no solution, there is no problem.
But in the meantime, if Row vs. Wade is indeed overturned, the issue will be where it should have stayed in the first place, with legislative bodies.
Blue states might go too far one way, allowing unfettered access to abortion right up to the moment of birth. Red states might go too far the other, making laws so restrictive that women will be afraid to seek doctors’ advice on problem pregnancies.
But the power of legislators is limited in a way the court’s power isn’t. They aren’t appointed for life, with five of them able to do whatever they want. They preside over the chambers where both your enthusiasm and your rage must be taken into account.