Tuesday, June 28, 2022

Sometimes the best thing to do is nothing. Even when there is a historic establishment of bad law. One of the unfortunate aspects of the hyper-partisan nature of Congress over the last 40 years, dating back to the congressional hearing of Robert Bork, is the politicizing of the Court. Robert Bork built a philosophy based upon a jurisprudential approach of deference. “Bork” became a verb after a Democratic Congress that mostly acknowledged his competency refused his nomination because of his political positions. In turn, when a Republican Congress had their turn, they forced the withdrawal of Daniel Ginsburg after he revealed he smoked marijuana in college—during the 1960s.

Ginsburg’s failure led to the chastising by a Democratic Congress of Clarence Thomas, who only survived after as the grandson of slaves, he called out Congress’ assault against him, as a “high-tech lynching.” Congress has not stopped. After a history of almost two centuries of non-contested Supreme Court nominations, the last half century has become both hyper-partisan and shallow with respect to the nominating process. Candidates reveal nothing for fear that they will “prejudice” a decision they might be required to rule upon, while Senators stump for the footlights as they seek soundbites to promote themselves as candidates worthy of leading a nation.

That leads us to the current controversy regarding the impending (and leaked) draft of the upcoming decision with respect to the legal (right to) abortion.

The main question imposed is whether a right enshrined under a Constitutional finding created by reflections, silhouettes and penumbras is defensible as Constitutional law.

As displayed by the recently leaked draft decision by Justice Samuel Alito, based upon scholarly criteria, perhaps not.

As Justice Alito explains, the foundation of a fundamental Constitutional right of abortion is built upon flimsy evidence. Roe v. Wade took a principle not mentioned in the Constitution inherently, a right of privacy, and evolved that right over a calculus of four separate Constitutional principles which create a “penumbra” of a right and attached it to a moving target—that of viability.

When Roe v. Wade was drafted, the science said that a pregnancy less than two trimesters through could not survive without the mother, and prior to that milestone a legal interference violated a woman’s right to privacy. Therefore, the initial decision took a “trimester” approach. The first trimester demanded no interference from the government, the second only permitted minimal interference. By the time the third trimester approached, the government could be involved because the fetus (or unborn baby, depending upon your position) could be supported with individual rights and the Constitution did not say otherwise.

Interestingly enough, even the stalwart of liberal interpretation, Ruth Bader Ginsburg, stated that the problem with Roe v. Wade is that it focused on the viability of the fetus rather than “a woman’s autonomy.”

That issue was amplified in the Casey v. Planned Parenthood decision of 1992, when critics attempted to argue that with advances in science, Roe should not apply. Perhaps ironically, it was a conservative woman and Reagan appointee, Sandra Day O’Connor, who saved abortion as Constitutional law finding that “stare decisis” the principle of precedent and not changing the law should prevail.

Stare decisis is a conservative principle historically where adherents believe precedents should stand absent grounded Constitutional foundation. The philosophy is based upon a jurisprudential underpinning of originalism basis that law can only be understood textually as established by the textual drafts of the laws created and the interpretations of its meanings by the drafters of the law.

Conservatism at its essence means to stand aside to let Congress establish laws and the Court to decide.

And yet, we now have a half-century tradition —a national identity with at least two generations representing perhaps up to 80% of the present American population—with a recognized established right emanating, however so, from the Constitution of a woman’s right to an abortion. How is overturning an established multi-generation precedent, a conservative principle? Have conservatives not run since the time of Reagan on the opposition to judicial activism? Or is this simply a matter of political opportunity?

Alito’s draft may be academically sound. There is no doubt, as Bader Ginsburg asserted, that the original decision in Roe v. Wade was poorly reasoned, barely legally supportable and, as the Casey decision depicted two decades later, a moving target, as there was no underlying legislation and the science improved. However, the zeitgeist had changed.

As much as the “Right to Abortion” is about the Constitution, it no longer is. Ruth Bader Ginsburg was right. The Constitution speaks of federal rights, but the question is one of reserved rights. The Constitution does not speak of an individual’s right to have vocal cords, yet it does speak of a right of free speech. Accordingly, perhaps it might be presumed that removing an individual’s vocal cords would be unconstitutional.

Abortion is obviously more charged. Different religions treat fetuses differently. Whereas certain Christian traditions treat an unborn child, even from the moment of conception, as a person with human rights, in Judaism we emphasize the right, and the health of the mother, up to birth —even to the point that the Talmud dictates that abortion not only is permissible, but an obligation when the mother’s health is in jeopardy. In that respect, it could be argued that establishing a Constitutional prohibition against abortion violates the First Amendment prohibition in establishing religion, since it takes one religious viewpoint over another.

In the end, it appears that if Alito’s draft becomes law, the present court, as promoted by Conservative politics, will become the establishment of what has always been feared, a politicized court. Perhaps Congress has made it this way. Back from the very days that a conservative judge was “Borked” from expressing opinions, and a liberal judge was rejected after admitting he smoked marijuana in the 60’s.

The question is: Can the Supreme Court ever be independent again? Or more importantly, as a society, is an independent judiciary still a value we seek as a society?

Stephen R. Loeb heads the Law Office of Stephen R. Loeb, a civil practice in New Jersey and New York. He can be reached at [email protected]

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