I am watching the Kavanaugh confirmation hearing and have
listened to so many over the last two weeks complaining about this. One of the
topics brought up is that if Kavanaugh is confirmed Roe v Wade will be
overturned. Do these people really believe the bullshit they are spewing?
My belief and opinion is that the court leans conservative,
and as such it will give more weight to precedent and adhering to existing laws
rather than legislate from the bench.
President Trump, during his campaign, continually stated he
would appoint Supreme Court Justices in the mold of Scalia. What does that
mean? Antonin Scalia, in my opinion, was a one of a kind brilliant legal mind.
He, on more than one occasion, voted for the majority on a case, even when it
went against his personal beliefs. I see that as a mark of a Constitutionally Conservative
Supreme Court.
Appointment of a conservative to the court does not
necessarily translate into the overruling of Roe, however, because justices
take precedent very seriously. They see precedent as the bulwark of the rule of
law. If a court may overrule a long line of precedent, all precedent is placed
in jeopardy, making the court little more than another political body. Roe’s
central decision has been repeatedly affirmed for more than a generation.
Solicitor General Rex Lee, the Reagan administration’s chief
advocate before the Supreme Court, understood that reversing a single case, as
incorrectly decided, was much less problematic, as a matter of precedent, than
reversing a long line of cases, solidifying a given precedent. Recognizing that
the court needed a fifth conservative justice to overrule Roe, he pled with the
attorney general and President Reagan to decline to bring any cases involving
abortion before the Supreme Court until they had the requisite five votes to
overrule Roe. Under intense pressure from pro-life interest groups, who needed
the administration to bring cases to keep their fundraising base energized, the
administration ignored its solicitor general’s advice. It insisted on
continuing to bring cases, each of which the administration lost, thereby
strengthening the underlying precedent in Roe.
Lee proved to be prophetic. By 1992, with the appointment of
Justice Clarence Thomas, the Supreme Court finally included five conservative
justices, each of which was inclined to overrule Roe. To the surprise of many,
however, in Planned Parenthood v. Casey[1],
the five votes necessary to overrule Roe did not materialize. Justice Sandra
Day O’Connor, a likely vote to overrule Roe, wrote the decisive plurality
opinion, joined by Justices Kennedy and Souter. In her opinion, Justice
O’Connor declared, “The sum of the precedential inquiry to this point shows
Roe’s underpinnings unweakened in any way affecting its central holding.”
O’Connor added, “An entire generation has come to age free to assume Roe’s
concept of liberty in defining the capacity of women … to make reproductive
decisions.” She, and those who joined with her, were left to begin the slow
erosion of Roe’s “central holding.” For similar reasons, it is unlikely that
the addition of a fifth strong conservative vote will result in an outright
reversal of Roe. Justices respect the rule of law too much.
Go ahead and Roe, Roe, Roe your boat. Thanks to retired
Justice Kennedy, we’ve actually been living in a Casey world — as
in Planned Parenthood v. Casey — for the past quarter century. For
good and for ill. “Don’t you dare touch Roe” is the political
hyperbole of Democrats and their fellow travelers. It is not a serious legal
position. As if serious legal positions had anything to do with confirmations
and/or politics.
Here is reality: Casey’s refinement of the right
judicially manufactured in Roe granted expansive and expanding room
to regulate abortion. The validity of those regulations, not the core holding
of Roe, is what dominates abortion litigation nowadays. It is unlikely
that cases will present a need to grapple with Roe; it is even less
likely that Roe will be overturned, and even if this highly unlikely
event were to come to pass, it would not render abortion illegal. Instead,
abortion would once again be a question for the states, the vast majority of
which would guarantee some degree of access to abortion. We are not going to
move into a post-Roe era, but even if we did, no woman who could obtain an
abortion today would be unable to get one post-Roe.
Activism is a good thing. And I have to say that honestly, I
have NEVER met an individual who actually said they wanted MORE abortions.
While I understand that there may be some out there, I have not met one
personally.
As we watch the confirmation hearings, I want to give a
small piece of advice to those who keep Roeing
the boat.
To the Pro-Life crowd: Respect the rule of law and our
Constitution. Keep working towards stopping abortions one heart at a time. I
have a friend in Tennessee who works for a pro-life group. David is successful
is lowering the number of abortions performed not by shaming women or spewing “baby
killer” words. He and his wife Amanda are successful because they truly want to
see the love of God in everyone’s lives. A hug goes further than a nasty word.
You want to stop abortions? Be like David.
To the Pro-Choice crowd: Respect the rule of law and our
Constitution. Work at stopping abortions on demand and strengthen the
Constitution instead of trying to change it.
Maybe if both sides of this very volatile issue can have a
civil discussion on the law with logic and take emotion out of the discussion,
we can make major headway into coming up with a sensible solution.
Using the falsehood of what would happen on the SCOTUS, both
sides of this issue are getting their grassroots activists all fired up for a
fight. They need this type of controversy in order to keep the support of their
base. “Stop Kavanaugh – Send Money” or “Confirm Kavanaugh – Send Money”.
To me, this is less about choice, life of the unborn and the
Constitution and more about money. Sad.
Just my thoughts and opinion.
