Abortion / Politics

Four Ways the Court’s Reputation Will Be Restored if the Alito Opinion Survives Roberts’ Taneyism

AMAC Exclusive – By Seamus Brennan

court Democrats Kavanaugh confirmation hearing protests set-up Trump biased judges political scotus cross peace crimes victimes illegal sanctuary liberty religious courtAs the nation awaits in the coming weeks the release of the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization—the controversial Mississippi abortion case for which a draft of Justice Samuel Alito’s 5-4 majority opinion was leaked earlier this month—speculation continues to mount that Chief Justice John Roberts is now working to undermine the Alito majority and its overturning of Roe v. Wade, the 1973 decision that resulted in an absolutist ban on abortion restrictions.

That Roberts is trying to convince one of the justices now thought to be in the Alito majority to join himself and the three dissenting liberal justices in rejecting Alito’s opinion was suggested in a May 18th article, “Creeping Taneyism at the High Court: Can Roberts Alter Alito?” Arguing that Roberts is consumed with keeping in place his two-decade-old strategy of handing unexpected victories to the Democratic Party, the media, and militant left in order to protect the nation and the Court from what he sees as disruptions to social “stability” and the dangers of “polarized” politics, the article compares him to the Court’s fifth Chief Justice, Roger Taney, who sought in 1857 to ease the nation and the Court through the dangerous shoals of disunion over slavery with an ill-considered Dred Scott decision that ended only in stoking the fires of division. In tracing in detail the current Chief Justice’s remarkable history of media and Court maneuvers in service of vague concepts like “fluidity in the middle,” the article lays out Roberts’ shaky rationale for justifying his own abandonment in key cases of the constitutionalist principles on which he was first nominated and appointed to the Court in 2005.

But while Roberts may well be striving mightily behind the scenes to move votes—something he has done in an earlier abortion case (in which he successfully brought over to his side one of the more newly appointed justices)—the challenge he faces in the Mississippi case is daunting, since all three of the Trump-appointed justices (Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) expressed during the December oral arguments considerable doubt about the legal rationale for keeping the Supreme Court, rather than state legislatures, as the ultimate arbiter of abortion law and practices.

Thus, should Roberts fail and the Alito majority hold together, the consequences could go well beyond ending the practice of abortion-on-demand. In fact, the Mississippi case could very well be the impetus for a much-needed rejection of Roberts’ public relations-oriented jurisprudence and serve as a renewal of the American legal system, which in recent years and decades has fallen prey to judges legislating from the bench on behalf of trendy and culturally extremist views of the progressive left.

If the leaked Alito draft accurately reflects the Court’s final decision, here are four ways it could rekindle America’s legal landscape and save the Supreme Court.

  1. First, overturning Roe would stand as a firm repudiation of the left’s intimidation tactics and demonstrate that the Court is capable of resisting mob pressure from radical activists. Following days of illegal protests staged outside the homes of the justices, it became clear that the left’s desired strategy was to bully any on-the-fence justices who signed on to Alito’s majority into changing course—a strategy they surely hoped would appeal to Roberts’ deliberately stated view that the Court must prioritize “legitimacy” and “credibility” while avoiding any appearance of “partisan divide.” If the 5-4 majority to overrule Roe remains in place, however, it would show beyond any reasonable doubt not only that Roberts’ view has no staying power among his conservative colleagues, but also that mob rule will not have the final word. In this sense, releasing a decision that overrules Roe would serve as a historic moment for everyone who cares about the rule of law and the integrity of one of our nation’s most sacred institutions.
  2. Second, the Alito opinion has the capacity to show that stare decisis, the legal doctrine that compels judges to adhere strictly to precedent, is not the sacrosanct be-all and end-all of American law that many would like it to be. Just as the High Court rightly overturned erroneous precedents like Dred Scott v. Sanford and Plessy v. Ferguson, the Court should not be compelled to uphold decisions like Roe, which is similarly acknowledged to be an intellectually shoddy and egregiously decided decision with no grounding whatsoever in the text of the Constitution. As Justice Clarence Thomas has said, “Stare decisis is not an inexorable command.” Rather, “the Constitution itself, the written document, is the ultimate stare decisis.” It’s well past time that the American people, the media, and the Court itself come to adopt this view as their own.
  3. Third, the Mississippi case could go a long way in restoring America’s law schools, which are quickly descending into progressive indoctrination centers with little regard for the American constitutional order. As law professor Charles Rounds once wrote, the American legal curriculum has become bombarded with courses that emphasize “bad sociology, not law”—or what lawyer George Leef described as “ideological window dressing”—and encourage activism and political advocacy rather than rigorous study of the law itself. But Alito’s exceptionally well-reasoned opinion could succeed in challenging Roberts’ status as an institutionalist consensus builder and reassert the dominance of the written law over Roberts’ obsession with the Court’s (and his own) approval in the left-wing media.
  4. Finally, if the leaked Alito opinion remains in place, it could expose Roberts as a having a pedestrian legal mind in the mold of Harry Blackmun (who authored the Roe opinion) and Roger Taney (who similarly stymied the written law in his Dred Scott opinion)—and prove once and for all that a public relations-oriented approach to constitutional jurisprudence harms rather than helps the Court’s institutional authority. Though Roberts likely doesn’t realize it, it is ironically his own attempt to avert political criticism that makes him the most politically calculative member of the Court and does the most damage to the Court as a legal institution bound by the law, as opposed to a political institution answerable to changing partisan winds. However, a correctly decided ruling in the Mississippi case would serve as a vital first step in reversing this dangerous pattern.

The real danger to the Court, as the May 18th article stated, is not the appearance of a so-called “partisan divide” among the justices, but rather “the sort of damage [Roberts] would cause with those he has long taken for granted if he were to succeed in overturning the Alito majority.” If Roberts were to be successful in altering Alito’s majority and preserving Roe, the piece continues, the “Court would be permanently diminished” in the eyes of “normal Americans.” But if Roberts fails, a scenario that at this point seems likely, it will be taken as evidence that decades of hard work and persistence among constitutional conservatives have paid off, that the rule of law has not yet been defeated, and that, above all, that the Court is worth fighting for.

With the Supreme Court on the brink of issuing this landmark ruling, most conservative commentators and pundits have been rightly focusing on the impending victory of the pro-life movement. But the pro-life movement and unborn children would not be the only beneficiaries. In the end, the Alito opinion could not only hand the pro-life movement its most significant legal victory since Roe v. Wade was decided nearly half a century ago and save untold numbers of unborn children, but it could also save the authority of the Court, the sanctity of Constitution, and the preservation of American jurisprudence itself.

For these reasons, if the Alito majority remains untainted, the American people will have much to celebrate.


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Smith
3 months ago

Roberts apparently plays for his personal legacy instead of the Constitution, and obviously thinks the future is with the statists. But he will be no American (or any sort of) hero. Opportunists like him are held in some degree of contempt by everyone.

Joel M.
3 months ago

So Roberts is “handing … victories to the Democratic Party, the media, and militant left in order to protect the nation and the Court from what he sees as disruptions to social “stability” and the dangers of “polarized” politics”. This is exactly what Pence and Barr seemed to be doing. IMO, it’s too late for calming things down. That ship has sailed.

Tom C.
3 months ago

Edwards is becoming a smaller and smaller “Legal Mind” obsessed over his legacy and “stability” which if both are served would have the opposite effect and tear the country apart — meaning if
you are Republican elections have no consequences and are without meaning as the Left blithely
overturns everything in our culture with value and replaces it with “leftist idealogical rigor”! Some
but not enough realize the USA and it’s valued culture and people are on the BRINK of total failure both culturally and financially simultaneously some thing no one would have thought possible until
a pandemic powered the Democrat party into overthrowing gov’t safeguards and threatening the very Constitution that si the last bulwark against run-amok Socialist/Communist authority which
we are ever so close to — you can feel it’s hot breath like a medieval Chinese dragon on your neck!
Doom is within reach and but one “crisis” away! And a recession on the way from run-amok spend-ing and an inflationary death spiral! & AOC says: “just need to print some more money” & all OK?!

Pat R
3 months ago

I hope and pray Alito’s majority stands & Roberts for once shows some knowledge/support of the Constitution’s declaration of right to life.

Clark Kent
3 months ago
Reply to  Pat R

Don’t bet the farm on same.

dispicable
3 months ago

Bush who nominated Roberts is a phony just like Roberts. Remember Bush didn’t say anything while Obama did everything in his power to destroy America. Obama is running the wicked show again. Giving all of our military hardware and no how to the muslims, to destroy America. Now the muslims are profiting from these insane gas prices. Muslims will use this money like Putin to destroy America. Bush couldn’t shut up when Trump was trying to do everything in his power to save the Christian American way!!! I believe Bush aided in 9/11!!!

Theresa Coughlin
3 months ago

Comment and a question: 1. Is Chief Justice Roberts the reincarnation of Judge Taney?
Comment: If anyone is trying to politicize the Supreme Court it’s the democrats. They are terrified by the prospect of the Court NOT rubberstamping their agenda from the bench, they will do whatever it takes to delegitimize it and destroy its credibility. Chief Justice Roberts is so obsessed with the Court getting good publicity, he’s helping the democrats do it.

Pat R
3 months ago

Good publicity from a leftist media.

tempus
3 months ago

Most of the events that are occurring in America today are the natural outgrowth of overturning Plessy v. Ferguson.
The Dred Scott decision ruled that Negroes were not citizens under the US Constitution – thus, the need for the illegally and unlawfully ratified the fourteenth amendment to make Negroes citizens

Clark Kent
3 months ago
Reply to  tempus

‘Illegally and unlawfully’? Since when? P.S. How many slaves do YOU own?

tempus
3 months ago
Reply to  Clark Kent

Since 1868. I own fewer slaves than you own.

Wanda Dorsey
3 months ago

Would little to know how Desantus is handling the homeless situation in Florida. News has said their homelessness is fron Covid payments for rent ending. So why can’t they work & save to avoid homelessness?

Rich
3 months ago
Reply to  Wanda Dorsey

Homelessness is the new “woke” culture. Grandpa Joe would likely say that they just can’t do anything about it. Of course we could throw a couple billion in the mix to “help” with the crisis. The pride we used to have of working and making it on your own seem to be a thing of the past. If a person really needs help, fine. If a person can work, then work!

Steven
3 months ago

Even legal scholars the support abortion said at the time Roe v Wade was decided that it was bad law. The excuse for legal reasoning was shoddy, at best.
There are at least 3 valid reasons not to follow precedent.

  1. Due to differences in facts, the prior case is not a true precedent.
  2. Changes in the law on which the precedent is based invalidate the precedent.
  3. The case that set the precedent was decided incorrectly.

The 3rd applies to Roe v Wade. Even if you support abortion, there is NOTHING in the Constitution that can reasonably be argued to protect abortion. In point of fact, the only thing in the Constitution that arguably touches on the issue is the 10th amendment, which states all powers not granted to the United States (read Federal government) or prohibited to the states, are reserved to the states, or the people. In more casual language, that means if the Constitution doesn’t expressly address and issue, that issue is outside of the authority of the Federal government.
Overturning Roe v Wade would actually not ban abortion anywhere. It would return the issue to the states, where is Constitutionally always belonged.
While I admit to opposing abortion, the above reasoning is 100% independent of any position on abortion per se.

Sherbear12
3 months ago
Reply to  Steven

You stated my line of thinking.
Not enough people understand things like that and unfortunately no one explains that, especially not on the left, nor do they want to hear it.
I feel If it’s overturned the left will try to use it as another excuse to pack the court. The Constitution is the Constitution and I believe in Constitutional law.

Becky
3 months ago

John Roberts, the Traitor to our Constitution, should have only one move left remaining in his miserable life: tie him to a pole in public and horsewhip the bejesus out of him.
America needs him to be GONE.
Badly.

John Bruno
3 months ago

John Roberts, Another black eye for George

Celticwoman
3 months ago

Since John Roberts declared Obamacare Constitutional among other bad decisions of his, I have lost all faith and confidence that he will ever do more than capitulate to the Lefties on the Supreme Court. Roe v. Wade was legislating from the bench as never before and I have never been able to understand why it has stood for so long.

I was a recent high school graduate when Roe v. Wade became the law of the land. At the same time birth control pills were available. I never agreed with the Supreme Court decision, but I was sure people who didn’t want a child, at least at the moment, would opt for “the pill” rather than take the life of an unborn baby. How wrong I was. I never dreamed abortion would be used as a method of birth control or that doctors would willingly take a life to improve their bottom line. I truly believe that this, along with removing prayer from schools, was the beginning of the slippery slope that has taken the United States of America on the road to the sorry state she is in today.

I grew up in the 1950s-1960s when love of country and patriotism were not optional. No child in my class would have dared not stand and say the Pledge. And we all said the Lord’s Prayer together no matter what religion. Even the Jewish children since the Lord’s Prayer is a prayer to God not Jesus. The Catholic children said the prayer as they did in their church. Nearly all families went to church and the discipline in the classroom was no different than discipline in church.

But the day the Supreme Court decided that they had the right to overturn one of God’s Ten Commandments and made it legal to kill an unborn child was the day our country started a decline in morality and values and once it got rolling there didn’t seem to be any way of stopping it. While many may consider COVID a curse, I for one (and my family has had it) consider the virus a blessing upon mankind. It forced the evil hand of so many from darkness into sunlight and, as we know, sunlight is the best disinfectant. Much that has come out regarding our schools, government, medical establishment, etc., would have stayed off the radar of most of the American public had it not been for COVID and COVID protocols. Our schools closing to in-person and parents finally seeing what exactly it was their children were being fed under the concept of “education”, seeing how our government could grab enormous power just by declaring an emergency because they said so, and discovering that the Hippocratic Oath could become the Hypocritic Oath when the healthcare industry was offered handouts for pushing an agenda and a pseudo vaccine on the world’s people while brooking no argument and often punishing those who felt they were in the wrong. People are finally starting to fight back against the tyranny that has been darkening our doorsteps for far too long now. For the first time in a long time I’m feeling hope for the future. Now if we can just get future elections right we might have a chance to get back to the God-fearing, law-abiding and patriotic country we once were.

Becky
3 months ago
Reply to  Celticwoman

Stupendously written. Amazingly organized. Perfectly correct.
Thank you. ’71

Richard Minetti
3 months ago

Roe vs Wade needs to be overturned to bring our society back to the way it was before these politically radical democrats came into the picture! Murder is murder!

JJ. Johnson Smith
3 months ago

Bottom Line is VERY simple. As the Late, Great, Justice Antonin Scalia said, “The Constitution says what it says, and it doesn’t say what it doesn’t say.” Exactly. The Constitution is CLEAR and CONCISE for anyone intelligent enough to possess decent reading comprehension skills. The SCOTUS Justices have ONE job, to decide the Constitutionality of the cases that come before them. If they prefer to play politics, they have NO business wearing the robe.

Becky
3 months ago

Exactly! It is so good to see intelligent people who understand America’s History, founding, and organization.

Clark Kent
3 months ago

And Sleepy Joe has no business being POTUS. And your point is?

James Marker
3 months ago

To summarize:

Gorsuch, Kavanaugh, and Barrett’s judicial independence is “untainted”, while suspicion that Roberts’ may diverge from the majority reflect his “obsession with… …approval in the left-wing media.”

Gorsuch, Kavanaugh, and Barrett’s abandonment of positions they explicitly claimed during confirmation actually fortifies their integrity.

Roe is the modern day equivalent to Dread Scott.

Roberts is the contemporary incarnation of Roger Taney.

Seems reasonable to me.

WWG1WGA
3 months ago
Reply to  James Marker

John Roberts has been tainted by his relationship with Epstein.

Cynthia
3 months ago

We’re not all California, NewYork etc…States Rights. Too controversial to impose this evil on us all. Infanticide now! We were warned!!!!

Willy
3 months ago

IMHO: Our original constitution is quite clear. There is no mention of abortion in it so it is left either to the States or the People. If the States had any sense they would leave it to the people. It is nobodys’ business but those involved; not the government nor the busybodies who seem to want to control other peoples’ business, and since it was left out of the constitution, it is none of the business of the Supreme Court either as they have nothing to interpret.

Joe Blow
3 months ago
Reply to  Willy

Yup. if Roe had been decided on 10th Amendment grounds rather than the 14th, it would be on firmer ground- and a plus is that the progressives would be all about supporting the 10th.

Steven
3 months ago
Reply to  Joe Blow

Actually, the reference to the 14th amendment in the Roe v Wade decision does not support a right to abortion. The decision actually states that if there were legal recognition that the unborn child was life, the 14th amendment would guarantee equal protection with all other living humans, including the protection of law against being killed.
I didn’t believe it until I actually read Roe v Wade, but a “Life at conception” act would actually outlaw abortion WITHOUT overturning a single word of Roe v Wade.

James Stogsdill
3 months ago

I don’t see Roberts swaying anyone from allowing the states to control this, Doing so would allow abortions to a full term policy, bringing many more suits about this to future court proceedings, Left to the states abortions may be allowed to full term but it is on the shoulders of the state alone.

John P. McGrath
3 months ago

How do I get rid of this annoying red comment button?

Clark Kent
3 months ago

Wear sunglasses.

Dave
3 months ago

The job of a Supreme Court Justice should be relatively simple; Here’s the Constitution, here’s the law; do they match? Obviously it’s not that simple, but that should be the template, not if it’s going to disrupt “social stability”. Freedom, by it’s nature, is somewhat chaotic.

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