The possibility that a Mississippi abortion law could lead to the reversal or weakening of Roe v. Wade has many on the left — including "progressives" on the Supreme Court itself — whining that the Court has become too political.
"Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts," Justice Sonia Sotomayor asked during the Dec. 1 oral arguments in Dobbs v. Jackson Women's Health Organization, a suit concerning a Mississippi law that protects babies from abortion from 15 weeks of pregnancy on.
Do Sotomayor and her fellow liberals mean the Court is on the verge of doing what the political branches do? If so, doesn't that sound familiar? It's what conservatives have pointed out the Court has done for decades.
When the Court takes a position untethered to the text or structure of the Constitution or objectively rooted in the history, traditions, or legal practices of our country, the justices are setting policy — which is not their job.
The most glaring example of this is the 1973 Roe v. Wade decision that legalized abortion through all nine months of pregnancy. The Supreme Court actually created policy, taking the regulation of abortion out of the hands of the states and making abortion the only medical procedure to have a constitutional status.
Since then the left has been perfectly content to allow the courts to continue in their role as the arbiter of abortion policy, with the Supreme Court having the last word.
But if the Dobbs decision does reverse or reduce Roe, the Court actually will have demonstrated its desire to be less political, to return the regulation of abortion to state government, where it belongs. Now 330 million people can help determine abortion's status through their elected representatives. That's a far cry from 1973, when seven unelected justices took part in the most notorious judicial overreach in our nation's history and set policy for the whole nation.
Some state legislators have been quite content to let the Supreme Court regulate abortion. It gives them cover with their constituents because they can say their hands have been tied. The right decision in Dobbs will return decision making to these recalcitrant lawmakers.
Nor do abortion supporters have anything to complain about. If they think unrestricted abortion is the right policy, let them make their case to their fellow voters and to the lawmakers they elect. As we know, some states will protect babies from all abortions and others declare themselves — as California intends — "abortion sanctuaries."
In his questions during the Dobbs arguments, Justice Brett Kavanaugh — one of three justices appointed by then-President Donald Trump — got it right when he took up the neutrality issue while questioning Mississippi Solicitor General Scott Stewart.
"... As I understand it, you're arguing that the Constitution is silent and, therefore, neutral on the question of abortion? In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process? Is that accurate?"
Yes, Justice Kavanaugh, that is accurate.
Many have suggested the Mississippi law is before the Supreme Court now precisely because Trump's three nominees would have an opportunity to team up with other conservatives on the court and wreak havoc on the nation. That's ridiculous.
Mississippi passed the law in 2018, a year after Trump's first nominee, Neil Gorsuch, was confirmed to the Court, and the same year as Justice Kavanaugh's confirmation. Not even the best crystal ball could have predicted Justice Ruth Bader Ginsburg's death or the swift confirmation of Trump's third nominee, Amy Coney Barrett. Mississippi legislators could not have known that a conservative-majority Court would hear their case.
But while the political leanings of the Supreme Court do make a difference, it's not because of their position on hot-button issues like abortion, but how they feel about the role of a judge.
On that point, Justice Barrett was especially eloquent on Oct. 26, 2020, as she was introduced by President Trump and sworn in for the Court by Justice Clarence Thomas.
"The confirmation process has made ever clearer to me one of the fundamental differences between the federal judiciary and the United States Senate," she said. "And perhaps the most acute is the role of policy preferences. It is the job of a senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give into them.
"Federal judges don't stand for election, thus they have no basis for claiming that their preferences reflect those of the people."
The Supreme Court has been political for decades. Now, we dare to hope that this pattern is about to undergo a major change.
Fr. Frank Pavone is one of the most prominent pro-life leaders in the world. Read Fr. Frank Pavone Reports — More Here.
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