Jul 27, 2005
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.
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.