Judiciary

Supreme Court Opinions Not Private Enough

The first killing of an abortion doctor by an anti-abortion activist happened in 1993. Since then, six more people have been killed in attacks on abortion clinics, which is fewer people than ended up dead by being in the vicinity of recently released Weatherman Kathy Boudin. Most of the abortionists were shot or, depending upon your point of view, had a procedure performed on them with a rifle. This brings the total to: seven abortion providers to 30 million fetuses dead, which is also a pretty good estimate of how the political battle is going.

The nation embarked on its abortion holocaust in 1973, when the Supreme Court astonished the nation by suddenly discovering that the Constitution mandated a right to abortion, despite there being nothing anyplace in the Constitution vaguely hinting at abortion.

Everyone knew the decision in Roe v. Wade was a joke. The decision hinged on the convenient notion of “privacy,” which, oddly enough, still fails to protect my right to manufacture methamphetamine, saw off shotgun barrels or euthanize the elderly, privately or otherwise. Even Harvard Law professor Alan Dershowitz has said the decision was wrong.

During oral argument in Roe, the entire courtroom laughed when the lawyer arguing for abortion law ticked off a string of constitutional provisions allegedly violated by Texas’s abortion law: the due process clause, the equal protection clause, the 9th Amendment “and a variety of others.” According to The Brethren: Inside the Supreme Court by Bob Woodward and Scott Armstrong, the law clerks felt as if they were witnessing “something embarrassing and dishonest” about the decision-making process in Roe, with the justices brokering trimesters and medical judgments like a group of legislators. Never has the phrase “judge, jury and executioner” been more apt than with regard to this landmark ruling.

The nation was so shocked and enraged by the ruling in Roe that state legislatures meekly rewrote their laws in accordance with the decision. The Supreme Court building wasn’t burned down. No abortion doctors were killed for the next two decades. No state dared ignore the ruling in Roe. Even when dealing with lawless tyrants, conservatives have a fetish about following the law.

Instead, Americans who opposed abortion spent the next 20 years working within the system, electing two Presidents, patiently waiting for Supreme Court justices to retire, fighting bruising nomination battles to get three Reagan nominees and two Bush nominees on the court. Then they passed an abortion law in Pennsylvania that was immediately appealed to the Supreme Court. At that point, Republican Presidents had made 10 consecutive appointments to the Supreme Court. Surely, now, at long last, Americans would finally be allowed to have a say on the nation’s abortion policy.

But the Supreme Court upheld the “constitutional right” to abortion announced in Roe. The decision in Planned Parenthood v. Casey was written by Reagan’s biggest mistake, Sandra Day O’Connor, his third-choice candidate Anthony Kennedy, and “stealth nominee” David Hackett Souter. The court’s opinion declared that it was calling “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Eight months later, the first abortion doctor was killed.

Meanwhile, conservatives responded the way conservatives always do. They went back to the drawing board and came up with a plan . It was the same plan that hasn’t worked for 30 years: Elect a Republican President, wait for openings on the court and keep your fingers crossed. It’s been going swimmingly so far. We can’t even get the stunningly brilliant Harvard law graduate and Honduran immigrant Miguel Estrada a spot on a court of appeals.

Having literally gotten away with murder for a quarter century, the court is getting wilder and wilder, deferring to “international law” and issuing nutty pronouncements more appropriate to a NAMBLA newsletter.

In the past few years, federal courts have proclaimed a right to sodomy (not in the Constitution), a right to partial-birth abortion (not in the Constitution), a right not to have a Democratic governor recalled (not in the Constitution), a right not to gaze upon the Ten Commandments in an Alabama courthouse (not in the Constitution), a ban on the words “under God” in the Pledge of Allegiance (not in the Constitution), and a ban on voluntary student prayers at high school football games (not in the Constitution).

These bizarre rulings illustrate the notion of the Constitution as a “living document,” one that rejects timeless moral principles so as to better reflect the storylines in this week’s episode of “Ally McBeal.” You may like or dislike the end result of these rulings, but-as subtly alluded to above-none of these rulings come from anything written in the Constitution.

In response to the court’s sodomy ruling last term, conservatives are talking about passing a constitutional amendment defining marriage as between a man and a woman. It’s really touching how conservatives keep trying to figure out what constitutional mechanisms are available to force the courts to acknowledge the existence of the Constitution. But what is the point of a constitutional amendment when judges won’t read the Constitution we already have? What will the amendment say? “OK, no fooling around-we really mean it this time!”

While conservatives keep pretending we live in a democracy, liberals are operating on the rule of the jungle. The idea of the rule of law is that if your daughter is raped and murdered, you won’t go out and kill the guy who did it. In return for your forbearance, you get to vote for the rulers who will see that justice is done. But liberals cheat. They won’t let us vote on an increasingly large number of issues by defining the entire universe-abortion, gay marriage, high school convocations-as a “constitutional” issue.

In what weird parallel universe would Americans vote for abortion on demand, affirmative action, forced busing, licensing of gun owners and a ban on the death penalty? Whatever dangers lurk in a self-governing democracy, the American people have never, ever passed a law that led to the murder of 30 million unborn children.

Judges are not our dictators. The only reason the nation defers to rulings of the Supreme Court is the very Constitution the justices choose to ignore. At what point has the court made itself so ridiculous that we ignore it? What if the Supreme Court finds a constitutional right to cannibalism? How about fascism? Does the nation respond by passing a constitutional amendment clearly articulating that there is no right to cannibalism or fascism in the Constitution?

Is there nothing five justices on the Supreme Court could proclaim that would finally lead a president to say: I refuse to pretend this is a legitimate ruling. Either the answer is no, and we are already living under a judicial dictatorship, or the answer is yes, and-as Churchill said-we’re just bickering over the price.

It would be nice to return to our federalist system of government with three equal branches of government and 50 states, but one branch refuses to live within that system. How about taking our chances with a President and the Congress? Two branches are better than one.

There may be practical difficulties with the President and the states ignoring the court’s abortion rulings-though there’s nothing unlawful about following the Constitution and I for one would love to see it. But there is absolutely no excuse for the Massachusetts legislature’s jumping when Massachusetts Supreme Court Chief Justice Margaret Marshall says “jump.”

Marshall, immigrant and wife of New York Times columnist Anthony Lewis, has recently proclaimed a right to gay marriage for all of Massachusetts. She has further demanded that the legislature rewrite the law in accordance with her wishes. One imagines Marshall leaping off the boat at Ellis Island and announcing: “I know just what this country needs! Anthony! Stop defending Pol Pot for five minutes and get me on a court!”

Granted, one can imagine how a woman married to the likes of Anthony Lewis might long for the sanctuary of a same-sex union. But that’s no reason to foist it on Massachusetts.

Ms. Marshall has as much right to proclaim a right to gay marriage from the Massachusetts Supreme Court as I do to proclaim it from my column. The Massachusetts legislature ought to ignore the court’s frivolous ruling-and cut the justices’ salaries if they try it again.

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