Preemptive Strike on Supreme Court?

Simmering down … is better than threatening “revolution.”

The Supreme Court is preemptively under fire, liberal non-lawyers in Congress – like Senator Jeanne Shaheen (D-NH) and Congresswoman AOC (D-NY) – threatening the Court, saying Roe v. Wade (1973) must be upheld “or else” expect “a revolution.” Such hysteria is bad for America. Simmering down is better. See, e.g., Dems threaten Supreme Court over abortion – their ‘revolution’ will destroy fair, impartial judicial system.

Even if you are pro-abortion, pause to understand six facts. If logic matters, if the binding force of our Constitution prevails, these facts should matter to you.

First, a preemptive rush to delegitimize the Supreme Court – based on the idea that five justices may favor removing the constitutional protection for abortion after 15 weeks – will backfire.

Since 1937, thousands of cases (many liberal) have been decided by the High Court, following the Marbury v. Madison (1803) prerogative to “say what the law is” and Constitution requires. Since 2007 alone, 991 cases have been decided, 76 a year. They cerebrally settled deep disputes.

If we delegitimize the High Court, we delegitimize all cases – countless holdings that evolved by reference to balancing facts and law in the context of precedent. Neither new facts nor old precedents are dispositive. If we dump one for the other, we undermine the rule of law itself.

Second, old precedents have limits – always have. They can outlive their time. The Court takes their best understanding of unchanging words and applies this understanding to new facts, recognizing that “getting it right” includes assuring some predictability.

That said, a precedent legally wrong is often overturned in favor of wider understanding. Thus, the 1896 case of Plessy v. Ferguson, upholding racial segregation on “separate but equal” was overturned – on moral and legal grounds by Brown v. Board of Education, in 1954 – christening the Civil Rights movement.

While the two cases were 58 years apart, Plessy had to go, Brown governed. The precedent could not prevent the progress or divert from moral review. The prior miscarriage of justice could not stand.

Roe v. Wade has stood for fewer years than Plessy did. Nothing in law, as lawyers know, prevents the Supreme Court from reexamining law in the context of changes. If it did, Plessy would stand.

Third, the central premise of Roe v. Wade – that abortion was determined by trimester and somehow protected constitutionally – was shaken in 1992. In Planned Parenthood v. Casey, the Supreme Court kicked the legs out from under Roe’s reasoning.

In that case, a complex mish-mosh of majority, concurrences, and dissents, divided across the opinion, ended the idea of abortion rights pinned to trimester, threw out “strict scrutiny,” invented “viability” at 24 weeks.

In other words, abortions already can be constitutionally restricted after “viability,” without offending the Constitution. This can be done so long as no “undue burden” on the “life or health” of the mother. A state interest is recognized in protecting pregnant women and unborn children.

So, why are we here? Because Casey‘s ruling, which narrowed Roe’s “constitutional right,” was a messy case, which has led to many interpretations. Liberals resist the idea that states have an interest – which supersedes any abortion interest – in protecting unborn children.

In other words, liberals want to keep the right to abort the child – and make it a federally guaranteed constitutional right – at any time, which is not what the Casey plurality said, co-written by the first female Supreme Court Justice, Reagan appointee, Sandra Day O’Connor.

Fourth, easily misunderstood – or easily blurred – is another fact. Reversing Roe v. Wade, or further narrowing the inferred right, as Casey did, does not end a state’s right to permit abortion.

In fact, Democrat-led states, such as New York, have inexplicably pushed the limits, allowing the killing of a child late-term and at birth, something no Supreme Court ever advised. Sadly, misinterpretations, misplaced priorities, and moral ambivalence allowed that development.

Fifth, the Supreme Court is independent. Something more than just distasteful, almost intentionally coercive, attaches to the idea that a politician should rise in the public square, as many leading Democrats are now, and threaten judicial independence.

Upholding one’s oath to the Constitution should mean respecting, not overtly threatening, those who sit on the High Court or that body’s legitimacy within the constitutional framework.

Finally, non-lawyers steeped in political gamesmanship, quick to get personal and apply undue pressure, or animated by the vim, vigor, and vitriol of politics – have no place in the judicial system, a process of dispassionate, juridical review, especially at the constitutional level.

So, if you think about what is at stake, as abortion rights are reviewed on a constitutional basis – the reality is different from what one finds in Congress, or even opinionated town squares.

This is not about who can apply pressure through entreaties, threats, promises, vilification, or preemptive condemnation. Not at all. This is about the rule of law, respect for institutions, and the Constitution, whether we still believe in it. We must, for the Republic’s sake, whatever our political views. Simmering down … is better than threatening “revolution.”