AMAC Exclusive – By David Lewis Schaefer
The weekend following the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, reversing the 1973 decision in Roe v. Wade, op-ed columns appeared in two of America’s three “national” newspapers expressing opposite views of the legitimacy of the Dobbs decision. It’s worth taking a closer look at these pieces, as they effectively capture the gulf that currently exists between the left and the right when it comes to abortion, and illuminate why it is that liberals, not conservatives, are the ones who pose a threat to the integrity of the Court and the legitimacy of judicial rulings.
On the one hand, Linda Greenhouse, who covered the Court for the New York Times from 1978 to 2008, published a “Requiem for the Supreme Court,” concluding that the majority had “finished off … the legitimacy of the court on which [its members] are privileged to spend the rest of [their] lives.” Greenhouse castigated the majority opinion’s “arrogance and unapologetic nature,” citing the dissenting opinion’s judgment (practically unprecedented for its vituperation) that the majority had overruled Roe “for one and only one reason: because it has always despised” women’s abortion rights, and through its decision was “substitut[ing] a rule by judges for the rule of law.”
Pronouncing the minority’s words “as terrifying as they are obviously correct,” Greenhouse asked, now that the Court majority had “shed the protection offered by its usual stance that it is simply the passive recipients that the public brings to its door,” where was it “leav[ing] the Court?” Contrary to the judgment by Justice Samuel Alito (who wrote the majority opinion) that Roe and its successor, 1992 decision in Planned Parenthood v. Casey, would continue to cause prolonged “turmoil” if they weren’t overturned, Greenhouse contended that the only turmoil that those decisions had ever caused “was due to the refusal of activists, politicians, and Republican-appointed judges to accept [their] validity” as precedents.
Ms. Greenhouse, it might be noted here, was no disinterested observer of the Court’s abortion policy. As she boasts in her column, her 1970 New York Times Magazine article titled “Constitutional Question: Is There a Right to Abortion?” was “the first article in a general-interest publication” to address that issue. And in 1989, as reported in a 2008 Weekly Standard column by John McCormack, Greenhouse was admonished by her editors for marching in an abortion rights rally – thereby manifestly violating the appearance of impartiality that would normally be expected of a Court reporter.
The opposite view of the legitimacy of the Dobbs decision was presented in a Wall Street Journal column from David B. Rivkin, Jr., who practices appellate and constitutional law in Washington, and Jennifer L. Mascott, a professor at the Antonin Scalia Law School who previously clerked for then-Judge Brett Kavanaugh and Justice Clarence Thomas, both members of the Dobbs majority. In the column, titled “The Supreme Court Reclaims Its Legitimacy,” the authors observed that it was in their Roe decision, not in Dobbs, “that the justices overstepped their [Constitutional] boundaries and ensured that the court would become the focus of political contention for half a century.”
As Rivkin and Mascott point out, far from exemplifying a departure from the Constitutional limits on judicial authority (as much of the popular media, exemplified by Greenhouse’s column, would have it) the Dobbs ruling “imposes no policy.” In other words, the judges did not enact any sort of prohibition on abortions. Instead, by recognizing that the Constitution ordains no “right” to abortion, it returned the issue “to the state legislatures, which had primary responsibility for setting abortion until the court imposed its own views on the country in 1973.” In fact, it should be noted, prior to Roe, a number of state governments had recently liberalized their abortion policies. Through its decision in Roe, the Court arbitrarily intervened in the regular political process, wanting to show that it was in the lead, rather than a laggard, in shaping an ostensibly “enlightened” abortion policy.
A crucial aspect of Rivkin and Mascott’s defense of Dobbs is their refutation of the claim that by overturning Roe, the Court was violating the legal principle of stare decisis (“let the decision stand”) – a claim that Greenhouse makes, citing the Chief Justice’s concurring opinion. However, in overturning Roe the majority itself cites a precedent set in Washington v. Glucksberg (1997), in which the Court concluded “that there is no constitutional grounding for any claimed right that is neither enumerated in the Constitution nor deeply rooted in the nation’s history and tradition” – a rootedness that can hardly be claimed for the practically unlimited right to abortion invented in Roe, given not only its lack of historicity but the unending controversy it has engendered (contrary to Greenhouse’s wish) ever since.
But there was no need to rely on Glucksberg to justify overturning a set of textually groundless Constitutional interpretations. As University of Chicago law professor (subsequently university president and later Attorney General) Edward Levi pointed out in his classic 1949 treatise An Introduction to Legal Reasoning, when it comes to the application of stare decisis (a rule derived from English common law), there is a crucial difference between legal and Constitutional interpretation. In the interpretation of laws, a strong presumption normally exists in favor of either following precedents or modifying them only gradually (if they seem defective), since people’s life decisions are heavily dependent on the assumption that the law will remain stable over time, unless it is altered by elected governments.
However, when it comes to Constitutional interpretation, the existence of a written charter (the Constitution) against which the validity of laws can be measured always leaves open the possibility, indeed the necessity, of overturning manifestly erroneous precedents. It was on this ground that Abraham Lincoln challenged the Constitutionality of the infamous Dred Scott decision, which relied on phony history and an obvious misreading of both the Declaration of Independence and the Constitution in order to invalidate the Missouri Compromise’s restriction on slavery – and, indeed, to deny that black people could be eligible for citizenship. (That decision, like Roe v. Wade, was justified by its advocates as needing to “settle” a national controversy – in that case, over the extension of slavery – by removing it from the political process.)
Without denying the finality of the Dred Scott decision with respect to the specific case it addressed, Lincoln warned that if the courts were allowed to settle matters of Constitutional interpretation based on the judges’ arbitrary will or preference, then the people would have ceased to be their own rulers. Hence, he urged the selection of a president and senators who would appoint judges pledged to reversing the decision.
Lincoln’s position finds support in the first text written by one of the Constitution’s authors to address the subject of judicial review. In Federalist No. 78, Alexander Hamilton justifies the authority of courts to declare void “all acts contrary to the manifest tenor” of the Constitution (emphasis added), on the ground that otherwise all that document’s “reservations of particular rights or privileges would amount to nothing.” Note that Hamilton’s argument presupposes that the Constitution has a fixed, if broad, meaning, rather than being a “living” document that judges are free to rewrite so as to favor their particular wishes. Only “manifestly” unconstitutional laws are subject to judicial invalidation.
The majority in Roe v. Wade made no serious effort to find any grounding for their decision in the Constitution. Instead, they drew on a supposed “right to privacy” asserted in the 1965 case Griswold v. Connecticut, which asserted thatthe privacy right was located in “penumbras” formed by “emanations” issuing from various provisions of the Bill of Rights – language recalling medieval Scholasticism rather than anything like a reading of the Constitution’s “manifest tenor.” (After all, if the Constitution ordains a right to privacy, why am I compelled to report my annual income to the IRS?) In fact, both the liberal Constitutional scholar John Hart Ely and famed liberal Supreme Court Justice Ruth Bader Ginsburg subsequently criticized Roe, with Ginsburg observing during a 2013 talk at the University of Chicago that the ruling “seemed to have stopped the momentum on the side of change” in favor of abortion rights, in contrast to a more gradual process that would have involved state legislatures.
Critics who argue that Dobbs violates stare decisis would have a hard time justifying the Supreme Court’s 1954 decision in Brown v. Board of Education, which overturned a precedent of nearly six decades (Plessy v. Ferguson) by ruling that racial segregation in public schools (soon extended to other public facilities) was unconstitutional. Yet although the opinion supporting the Plessy decisionwas poorly reasoned (relying on manifestly silly “social science” rather than on serious textual analysis, which would have been far more persuasive), little objection was raised to it outside of Southern and a few midwestern states. Though the decision took some time to enforce, and began to take full effect only with the enactment of the Civil Rights Act (1964) and the Voting Rights Act (1965), within some 15 years it achieved the status of a national moral consensus. Nothing like that resulted even 49 years after Roe, opposition to which has if anything grown stronger with time.
It is regrettable that some critics of Dobbs have already engaged in acts of violent protest to express their displeasure – doubtless partly inspired by Senator Chuck Schumer’s leading a mob up the Court steps in 2020, threatening newly-appointed justices Neil Gorsuch and Brett Kavanaugh that they would “pay the price” and “reap the whirlwind” if they voted to roll back abortion rights.
Those who believe that abortions – with varying levels of restriction – should be lawful should channel their energies into the regular political process at the state level, just as Lincoln argued in response to Dred Scott, rather than relying on the Court to rewrite the Constitution in their favor. That is what constitutional government means.
David Lewis Schaefer is a Professor of Political Science at College of the Holy Cross
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This has been and will continue to be a national debate. Keep in mind there are 2 issues with this decision: 1. Constitutionality and 2. Abortion.
Biden and Congressional Democrats have pledged to fight this by Legislation. The only Legislation that would change the first Constitutional issue is to update the Constitution with an Amendment. It would need to give the Federal Government the power to effectively rule on exactly point in time life begins. The woman has rights, but at what point in time does an unborn baby become an living individual with inalienable rights of its own?
An amendment that kind of plays God… right?
Many argue it is the point in time when the baby leaves the womb… but think about this. Conception can now be done in a test tube. Premature babies as early as 21 weeks have survived. How long before the complete process could be done outside of a mothers womb? Science has changed much of the debate that took place even 50 years ago… it will continue to challenge this question.
Who are we to challenge science or God?
The majority of media outlets went commie liberal DemocRat several decades back. The Commie form of governance is the only likely political “grouping” that can rule and control the non-members of the “grouping.” Debate to your heart’s content, but the so-called DemocRat Party is a very tight form of Communism … and which has a pressing problem of having to fool the Media reporters and editors and the voting population. And of recent history the Democraps rigged a POTUS election that put a Dum Arse in as POTUS. Remember … The DemocRat Party seeks to RULE the Nation … not GOVERN the Nation.
Remember when Michelle Obama said ,”we will be ready to rule from day one”? Slip of the tongue that told the truth. She also said that she and Barack had visited Kenya, Barack’s birthplace.
It’s important to note that not only was Dred Scott not contravened (except by Amendment 13), Roe actually used it as a precedent in its fatally flawed decision.
” Liberals ——————— Are Real Threat to Constitutional Order” . this could have been written in ’92.
What has happened to our morals? 1 in 5 pregnancies today is an abortion. Listen to the women who proudly say they have had 1, 2, 3 etc. abortions and wear it like a badge of honor. Are we not teaching young girls in school how to protect themselves and have person pride in their bodies. I just can’t believe what is happening. Maybe GOD gave us covid so the next generation will be sterile and will not have to worry about abortions
The Chinese gave us Covid after yet another research lab accident.
What’s missing here is the opportunity to return the DC power to the people. Since the Court of unelected government employee lawyers in black robes has no Constitutional check, there is a bridge to hold Justices to the intent of the Framers. An amendment controlling the the justices rulings held by the states and the people. That would be the Countermand or Power Check amendment proposal. It might give 3/5 (or some other fraction)of state legislature the power to nullify or void any ruling, executive order, or law written by any one of the three branches the power to cancel such order or ruling or law. Because Congress would probably not be interested in such an amendment, we should consider using the second clause of Article V instead.
Mike Kapic’s words: excellent!
Convention of States.
Mike’s comments are spot on. The West Va EPA ruling complements the Roe override — Congress has become much too accustomed to shirking responsibility for major policy issues by shunting them off to regulatory bureaucracies. Their powerful but unelected “commissioners” (who might be better titled “commissars”) become self-important ministers of ideology, almost always Leftist in nature.
The majority opinion in the EPA ruling says to Congress: “Hey, you can delegate the small stuff and the minutiae to regulatory agencies, but not the big decisions that have major influence on life and liberty of so many. Do your job and bring those big decisions before you in Congress where you can be held accountable by the people!”
I hope there will be many more such opinions coming! They’re long overdue! Wickard v. Filburn is another decision ripe for overturn …
Leftists been threat day 1
Nothing new here in terms of the media’s inherent bias to support the most extreme views of the left. Don’t expect the MSM to change, because the overwhelming majority of them are as “progressive” as they come.
The conclusion that the author makes, that the left should rely on facts instead of emotion, clearly misses the entire focus of the left’s agenda. Everything the left promotes relies on triggering an anticipated emotional response from their intended audience. Facts are useless things to be either ignored or completely discarded in their world view. What matters to them is leveraging emotion over fact-based logical thinking in order to steer the populous to support their agenda. Emotion is a means to an end and they certainly are NOT going to throw away their most effective means of steering society towards the left’s goals.
Im going to resort to emotion and categorically say that as soon as i saw the photo of ms greenhouse I immediately thought “lefty”. Yeah, thats right. Anyone that pug ugly has been mad at the world their whole life. Lefties are always angry.