Politics & Policy

Justice Distracted

The system, including the Supreme Court, is a mess.

The vast recognition of the astounding accomplishments of Apple’s Steve Jobs seems not much to have focused on the fact that — according to the moral views that have prevailed in the United States for most of his adult life — he, as the unintended issue of a young, unmarried couple of limited means, was a prime candidate for abortion, which the Supreme Court has determined to be a matter of a woman’s privacy and sole authority over her own body.


My purpose is not to reopen the vexed abortion debate, only the questionable reasoning behind the current state of the law, and the unrigorous philosophical selectivity of some leading jurists. The abortion issue depends on the point at which the unborn are deemed to have obtained the rights of a person, when their right to life supersedes their mothers’ right to control all that occurs within their own bodies. Perfectly good arguments can be, and have endlessly been, made for every option, from conception to birth at the end of term. Majority opinion in most Western countries is that it’s the point at which a baby is reasonably likely, with sophisticated medical attention, to survive: about five months.


The intensive activities of the pro-life faction, especially the Roman Catholic Church, have debunked the theory with which the pro-abortionists began, that it was exclusively a female-privacy issue of no more moral significance than disposing of a dishcloth. If Steve Jobs, who has been rightly claimed to have been one of the great commercial and marketing geniuses of world history, had been conceived ten years later, in 1965, or after, his parents would have been aggressively counseled to abort him. And that advice — and, if it were followed, the procedure itself — would probably have been government-assisted, even if only indirectly, by tax-favored treatment of the counseling agency.


The issue of disposing of large numbers of conceived but unborn people involves practical as well as moral considerations. At the time Steve Jobs was born, in 1955, concern was already rising about the world population explosion, and the need to seek Zero Population Growth. In this area, almost all advanced countries have been overachievers and have fallen into chronically low levels of demographic regeneration.


Instead of addressing abortion, as they should have done, Congress and state legislators waffled, abstained, and failed to do what legislators are needed, elected, and paid to do, and left it to the courts, a shameful abdication. It was a dereliction on all fours with Congress’s refusal to deal with immigration as millions of unauthorized and unskilled people poured into the country, and scores of millions of low-paying jobs were outsourced out of it.


There has been no serious public discussion of trying to promote — by incentivization, not coercion (as first India and now China have tried) — an optimal demographic policy, even as the population ages and the richest nation in history stares myopically at the impending bankruptcy of its public sector. America is being led into the slaughterhouse of insolvency by the Judas goat of unbalanceable social programs, as a shrinking proportion of earners creaks under the burden of an ever-larger number and proportion of medically expensive, elderly recipients of benefits.


This leads to the even more delicate issue of the moral precepts that guide the judges and justices into whose inept laps these issues have been dumped by the moral and political cowardice of legislators of all ideological shadings, in both parties, at all levels, for decades.


President Eisenhower’s patronage recognition of the nearly 25 percent of his countrymen who were Roman Catholics was the nomination to the Supreme Court of Justice William Brennan (where Roman Catholics, starting with the infamous Chief Justice Roger Taney, 1834–63, had preceded him). Now we have three Jewish and six Roman Catholic members of the Supreme Court, though probably only about four of the Roman Catholics appear to be particularly attuned to the official positions of their Church on the types of issues apt to come before the high court.


But some are, including Justice Antonin Scalia, who, as Maureen Dowd wrote in the New York Times on October 2, has attacked the complainant in a civil suit to stop the banning of co-ed dormitories at the Catholic University of America in Washington, D.C. As Ms. Dowd pointed out, Justice Scalia has not hesitated prior to this to volunteer publicly either his solidarity with his Church militant, or his dissent from it. But in the case of the Roman Catholic Church’s long-held and oft-expressed (by four recent popes) hostility to the death penalty, Justice Scalia recently told Duquesne University in Pittsburgh that if he thought “that Catholic doctrine held the death penalty to be immoral, I would resign.” Since he could not possibly be unaware of the views of the Holy See over the past 50 years (John Paul I was the only pope in that time who did not reign long enough to opine on the subject), nor of the authority of the pope to speak on such matters for the whole Church, it is not clear why he is not delivering his letter of resignation to the president instead of sticking his nose into the dormitory rules in one of the national capital’s universities.


To move the inquiry that Ms. Dowd usefully started to entirely secular matters, there could be searching questions about why the Supreme Court has sat like a great suet pudding for decades while the Bill of Rights has been raped by the prosecution service with the connivance of the legislators, a tri-branch travesty against the civil rights of the whole population, but I will spare readers another dilation on that subject. However, Justice Scalia’s preoccupation with the dormitories of the Catholic University of America (a matter that is now, to the Justice’s chagrin, sub judice), is, in the circumstances and to say the least, bizarre.


Leaving that aside, the report card on the co-equal branches is not uplifting: The legislators and the executive wimped out on abortion and immigration. The beehive of conscientious jurists on the Supreme Court applied a completely amoral test to get to a defensible conclusion on abortion when it was dumped by default on them to determine. And its most vocal current Roman Catholic member, swaddling himself in his faith, upholds the death penalty in contradiction to the popes, holds in pectore his views on abortion (which is not now before the high court, though not for absence of petitions), and thunders fire and brimstone about coeducational university dormitories, which is not, I think, a subject that the See of Peter has addressed.


The executive and legislative branches do nothing to encourage a higher birthrate, having ducked abortion, nor to promote the most assimilable immigration, having flunked in dealing with the more prevalent, illegal categories of immigration. Justice Scalia’s responses to the moral positions of his Church are between him and his archbishop, even when he trots them out publicly, but the failure of the whole inter-branch U.S. government to address any of these immense issues that ramify profoundly, morally or practically, has created a potentially lethal threat to the country’s fiscal and social stability.


Justice Scalia’s conduct may or may not be, by the canons of his Church, as Maureen Dowd suggested on October 2 in the Times, “cooperating with evil,” but it is, in some respects, in a phrase of the Blessed Cardinal Newman’s, “shovel-hatted humbug.” America needs more people like Steve Jobs, from conception even unto elegiacs.


— Conrad Black is the author of Franklin Delano Roosevelt: Champion of FreedomRichard M. Nixon: A Life in Full, and, just released, A Matter of Principle. He can be reached at cbletters@gmail.com.


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