Law & the Courts

The Long Shadow of Roe Haunts the Supreme Court Debate

(Reuters photo: Jonathan Ernst)
How one decision corrupted the judiciary and made the nuclear option necessary

As Senate Democrats prepare to filibuster one of the most qualified Supreme Court picks in a generation, as they continue to seethe that Barack Obama’s nominee, Merrick Garland, was denied a hearing, and as Republicans prepare to nuke the filibuster to confirm Neil Gorsuch, well-meaning Americans look at a “broken” process and wonder, “What went wrong?”

There are narrow answers to the question, and I offered one yesterday, writing that Ted Kennedy killed the judicial filibuster in 1987. His extraordinary and slanderous personal attack on Robert Bork transformed the confirmation process for the next three decades (and counting). But even Ted Kennedy was a symptom of a larger problem, one that the Supreme Court unquestionably brought on itself. The people who are truly to blame for the present crisis all wore (and wear) black to work.

What went wrong? The Supreme Court went wrong, and it did so most decisively and consequentially when it created the right to kill a child.

It is difficult to overstate the legal and moral consequences of the Supreme Court’s decisions, rendered inevitable in 1965, formalized in 1973, and reaffirmed in 1992, to dishonestly create and illegitimately protect a “constitutional” right to abortion. In a series of strokes, the Court declared that the text and history of the Constitution — even reason and logic itself — were inconsequential compared with the presumed social justice of the outcome. This was the “living constitution” turned into a child-devouring monster.

Consider the foundation for Roe v. Wade, the 1965 case Griswold v. Connecticut. This case concocted a constitutional right to purchase and use contraceptives. This is the textbook example of how bad facts make bad law. In this case, Connecticut had on the books an unenforced and unenforceable law prohibiting even married people from using contraceptives. One court dismissed a challenge because it deemed the law a “dead letter.” The statute was so meaningless and the case so artificial that the district attorney let the plaintiffs (according to a glowing Newsweek profile) “in a sense write the script for their arrest.”

No matter. Planned Parenthood got its test case, and Justice William O. Douglas obliged with one of the most incomprehensible opinions in judicial history. Since of course there is no right to purchase contraceptives in the Constitution, and there was a very long history of state-regulated sexual conduct in the United States (including laws against adultery and fornication), the Court had no actual textual basis for ruling in favor of Planned Parenthood.

But who needs text when you have “penumbras and emanations”? In his opinion striking down Connecticut’s law, Justice Douglas actually wrote that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” This was sheer nonsense. It was embarrassing rhetoric, but embarrassing rhetoric from the Supreme Court has the force of law.

Just like that, the majority of the legal heavy lifting was done. Roe v. Wade was foreordained, and the Court that held that a Constitution that “did not explicitly mention any right of privacy” was somehow “broad enough” to grant one person (the mother) the constitutional right to hire someone to kill another person (her child) — a person that the Court arbitrarily called a mere “potential life.”

While the outcome of the decision was immediately hailed by leftists across the land, the more honest liberal legal scholars were (to put it charitably) dubious. Earlier this year, the Washington Examiner’s Timothy Carney collected some of the better examples. Harvard Law School’s Laurence Tribe famously said that “behind [Roe’s] own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Edward Lazarus, a former law clerk to Justice Harry Blackmun, the author of the Roe opinion, said, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” Even Ruth Bader Ginsburg, the “Notorious RBG” herself, once said the case was “heavy-handed judicial intervention [that] was difficult to justify and appears to have provoked, not resolved, conflict.”

But that was then. Now Roe is sacred. So sacred, in fact, that it’s worth creating a new religion to protect. In Planned Parenthood v. Casey, the Supreme Court turned back a direct challenge to Roe in part by issuing a stirring ode to the power of precedent and in part by embedding a deeply religious principle deep in the heart of constitutional jurisprudence. Justices O’Connor, Kennedy, and Souter (GOP appointees, all) declared that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

This is a bold philosophical statement, found nowhere in the Constitution, that is utterly at odds with Christian orthodoxy and the fundamental beliefs of most major religions. It creates a kind of constitutional “super clause” that literally cloaks the act of mass-scale killing within a fictional right of each person to “define” for themselves the “mystery of human life.” Never mind DNA. Never mind science. Never mind logic.

Never mind the Constitution.

The moral consequences of this intellectual bankruptcy have been profound. Millions of children have been poisoned, stabbed, and dismembered. Our democracy has been corrupted to protect abortion charnel houses even from the most basic commonsense regulations. The precedents and reasoning that created the abortion right have translated into a belief in a “living constitution” that is so deeply embedded into the philosophy of the Left that it now believes that the Court can and should simply decide the correct outcome of any given case and then “find” the right and reasoning in some combination of philosophy, law, precedent, and (sometimes) even selectively chosen foreign legal decisions.

It is against this backdrop that people who respect the text and history of the Constitution look at the unusual exercise of GOP will — blocking Merrick Garland and pushing Neil Gorsuch through a potential filibuster and say, quite simply, “Finally.” Finally the GOP understands the stakes. Finally the political branches are taking steps to correct the judiciary’s overreach and abuse. Finally the checks and balances are checking the justices of the Supreme Court. They are not high priests. They cannot define a new religion. And they are not ultimately beyond or above the Constitution they purport to rewrite.

Roe casts its long shadow. That shadow fell on Merrick Garland. It now falls on Chuck Schumer and Senate Democrats. It falls on a political movement that won’t permit dissent from its child-killing ethos. Defying President Obama in 2016 and Chuck Schumer in 2017 won’t fix our nation’s jurisprudence, and it won’t necessarily end Roe, but it does signal that a critical mass of Americans have had enough. At long last, and for today at least, judicial supremacists face the consequences they so richly deserve.

— David French is a staff writer for National Review, a senior fellow at the National Review Institute, and an attorney.

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