The Supreme Court’s abortion decision exhibits a fundamental misunderstanding of the judicial role and our system of government. First, the majority primarily relies on a case involving assisted suicide which says that liberty rights must be “deeply rooted in the Nation’s history and tradition” (Washington v. Glucksberg) and proceeds to devote page after page showing that abortion was a criminal offence at various stages of our history.
What this amateur foray into abortion history misses, as the majority well knows, is that the Court has specifically denied that rights must be deeply rooted in the Nation’s history and tradition. In upholding same sex marriage, Obergefell v. Hodges, disagreed with the Glucksberg test and pointedly observed that “rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” See also Lawrence v. Texas (same sex relations constitutionally protected). Griswold v. Connecticut (right to use contraceptives constitutionally protected).
The Court says that the rights to use contraceptives, to engage in same sex relations, and to same sex marriage are not in danger because they do not involve pre-natal life. This is a puzzling claim. The majority claims to be neutral about fetal life and abortion. It is not at all clear how neutrality is compatible with the majority’s claim. More important, the deeply rooted language is out of the bag. Why would anyone believe the Justices would not trot it out again?
Judges are just referees, say the conservatives, not policymakers. And there the Court steps into outer darkness. I am reminded of Friedrich Nietzsche dictum: “To have a system is to lack integrity.” A system in which judges do not make policy decisions is either a prescription for outdated stupidity (e.g., giving excessive weight to a history of racism or sexism) or an occasion for cheating on the system. Take my word for it. Prominent areas of conservative cheating include cases involving the First, Second, and Eleventh amendments.
Moreover, the conservatives are excessively romantic about the legislative process. All too often legislative decisions are made because money talks. So far as I am aware, the judicial process proceeds without legalized bribery. And elections are often personality contests where voters cannot focus on single issues in ways that judges can.
Finally, the conservatives apparently believe that wise political judgment and partisan political preferences are the same thing. In the area of abortion, the liberals refer to the right of privacy, or the right of bodily autonomy, or a general liberty right. This allows liberals to formulate outcomes that are consistent with fundamental human needs.
One of the conservative responses tells it all: “Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.” Really? Is there anyone who thinks that the liberals would create such rights? Of course not. Judges exercise judgment. They are not just calling balls and strikes. Judicial policy making is not foreign to the Constitution. Indeed, Justice Felix Frankfurter was closer to the mark “Five justices of the Supreme Court are molders of policy rather than impersonal vehicles of revealed truth.”
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