Blogs > HNN > Some random judicial thoughts

Jul 26, 2005 9:46 pm

Some random judicial thoughts

In an interview on Tuesday , Attorney General Alberto Gonzales said that Supreme Court Justices are “not obliged to follow” the Roe v. Wade precedent, although he at least acknowledges that lower courts ARE bound by the ruling.

Perhaps Gonzales did not get the memo that John Roberts, and not he, was offered the SC nomination. What makes Gonzales’ statement so puzzling is its rather cavalier tone. Of course, as anyone knows, the Supreme Court is not obligated to follow anything. There is no Constitutional provision that would prevent them from deciding cases based on the flip of a coin or a game of monopoly. Furthermore, many-a-Supreme Court case has been rightly overturned by some subsequent court throughout American history and our democracy has been no worse for much of it.

No, what troubles me about the statement was when I read the grounds that Gonzales says a Justice should overturn the most controversial ruling in the last 30-plus years: “If you believe it’s wrong.” If you believe it’s wrong? A Republican cabinet member in the Bush White House advocating Justices making rulings based on what they personally think “is wrong”? Now that doesn’t sound very much like judicial restraint to me. If the Supreme Court does overturn Roe v. Wade, I would hope that it is done on the basis of sound Constitutional interpretation and not simply because they think abortion is wrong. Now what would the media say if a liberal President (or a Bigfoot since it is just as rare to actually see one) said that Justices should vote against the death penalty, or gun manufactures if they “believe it’s wrong.”

As Justice O’Connor, Justice Kennedy, and Justice Souter said in their 1992 opinion, Planned Parenthood v. Casey, “Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”

In all fairness, however, it is possible that Gonzales meant “wrong” in a legal and not in a personal, way. If not, then I guess it is good that he is not the nominee after all.

While we are on the subject, I will likely make few friends by saying that I would not find overturning Roe all that catastrophic. After all, doing so would not make abortion illegal, it would simply means that states MAY make it illegal if they so choose. If you don’t want them to, then go out and join those most rare of political animals: the local election voter.

Although I support a woman’s right to chose to have an abortion, I am not entirely convinced that such a right can be Constitutionally protected under the privacy right enumerated by Griswold v. Connecticut. Like many issues, perhaps it is best left to communities (i.e. states) to make decisions based on the interests of its own citizens.

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Marc "Adam Moshe" Bacharach - 7/27/2005

You are right about Roe being a symbol, and the certainty of so many states banning it (after all, the first election after State struck down bans on gay marriage saw no fewer than 11 states pass constitutional amendments). Although I think far fewer states would ban outright than had originally outlawed it before 1973. And with the advent of more effective birth control and the so-called “morning after pill,” I don’t think abortion is as necessary as perhaps it once might have been to maintain women’s sexual freedom.

As for Gonzales, I hope I am wrong, but I suspect that Bush nominated Roberts this time because he plans on nominating another Scalia or Thomas when Rehnquist leaves (which will undoubtedly be in this administration). By putting a “moderate” in first (and I use that term only relatively) he not only “buys” the support of some Republican moderates in the Senate, he also reaps the benefit of exhausting Democrats’ resources on a loosing battle if they choose to fight him, leaving the nation too weary for another fight when Bush gets his next pick. That’s the “conspiratorial” Marc answer anyway.

Derek Charles Catsam - 7/27/2005

Marc --
Roe is a huge symbol, as much as anything. But I can assure you that some states would restrict abortions overnight, which would be a catastrophe for many poor women.
Gonzales has apparently learned that he will not be nominated for any open Supreme Court judgeships. How else to explain his making public his answer to the question most conservatives studiously avoid? Many folks are trying to parse Roberts' writings to find his answer to just this question. Gonzales has given it away. Not smart if he wants to be the first Hispanic justice when Rehnquist (or Stevens or Ginsburg) goes.

I have always been more sympathetic to Griswold's "penumbral emanations" argument than many people, but don't expect it to receive much of a hearing by candidates for the court in the near future.