SCOTUS decision to overturn Roe, Casey is a major escalation in the Cold Civil War.
I was wrong, very wrong. I did not think the Supreme Court of the United States (“SCOTUS”) would overturn Roe v. Wade and Planned Parenthood v. Casey, the Court’s decisions that federalized the former constitutional right to abortion.
It is clear to me now what law schools teach — that judges respect precedent; that stare decisis restricts judicial activism; that the rule of law is without fear or favor — is total rubbish.
I knew better before legal training diseducated me with fallacies. In 2018, following Justice Kavanaugh’s confirmation hearing to SCOTUS, I laid out my beliefs, which I now know to be true, in my post, “Kavanaugh & Originalism: Hearing reveals true face of oppressive legal philosophy.”
Kavanaugh testified for days that he is a committed originalist, a jurist who decides the law without any political bias. It is impossible to reconcile that testimony with his deeply partisan behaviour in Thursday’s hearing.
Humans make decisions based not only on reason, but on a plethora of factors, including biopsychosocial factors, moral values, political values, self-interest, prejudice, fear, conditioning, education, socio-economic status etc. etc. These factors, which are the result of our birth, upbringing, and education, as well as individuality, interact impulsively, are then felt emotionally, and are finally solidified in reason, thus creating our worldview. The existence of a worldview implies the will for preferred outcomes, and our preferred outcomes are then subject to rationalisation. After all is said and done, we eventually forget that our philosophies were not the result of rational consideration from the first instance, but rather were merely shaped, refined, and reinforced by reason.
Conservative originalists maintain that judges should not be ‘activists,’ meaning that they should stick to precedent. But precedent is not the exclusive domain of conservatives. Progressives also use precedent to substantiate and further the law. Constrained by the range of subjectivity within law, both originalism and activism seek to use precedent to advance their preferred outcomes.
One distinction originalists fail to make, is that precedent takes on a different, lighter weight at the Supreme Court level. It is of course necessary for lower judges to follow the Supreme Court’s rulings and legislative intent, in which case, strict adherence to the letter of the law is necessary. However, there is no constitutional limit on Supreme Court activism. No one disputes that the law is whatever the majority of the nine Justices agree. There are zero checks in the Constitution to prevent a Supreme Court Justice from overturning precedent, or from writing law as their conscience dictates. It is convention, not constitutional mandate, that requires a Supreme Court Justice follow precedent.
The convention of precedent is often broken when the Court realises it has made a mistake, or when moralisation leads to a new understanding of an issue that makes clear what is just and what is not. But mere convention does not stop the Court from overturning precedent for political reasons.
So where are the lines, within an individual’s conscience and worldview, between one’s moral values, political values, religious beliefs, and material interests? It is naive to think clear boundaries exist. The different factors that constitute our will and motivation, and which determine our worldview, create a rational framework to justify preferred outcomes.
Originalists argue that the separation of powers doctrine suggests that it is the responsibility of Congress or state legislatures to write the law on abortion, since the term is not found in the text of the Constitution.
Originalism iteself is a form of judicial activism, insofar as it is less a superior philosophy of law at the Supreme Court level, and more a way to rationalise preferred outcomes. This truth was visible today more than most, in Kavanaugh, where the line between judge and politician was firmly erased. Kavanaugh attacked the left and Democrats with vitriol. Conservative Justices are conservative with the law because their preference is for conservative political outcomes, just as liberal Justices are liberal with the law because their preference is for liberal political outcomes.
You can try to rationalise away this conclusion, but really you’re just proving my point: reason is a powerful tool, and seductive — it can even convince you that you’re acting entirely rationally. Most of us think we are doing the right thing, but some of us are wrong, as time will tell.
Today, Republican Senator Susan Collins denounced SCOTUS’s reversal of the right to abortion. “This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon,” she said. Collins warned the Court’s decision will exacerbate political divisions and lead to a loss of confidence in government.
This ill-considered action will further divide the country at a moment when, more than ever in modern times, we need the Court to show both consistency and restraint. Throwing out a precedent overnight that the country has relied upon for half a century is not conservative. It is a sudden and radical jolt to the country that will lead to political chaos, anger, and a further loss of confidence in our government.
During his confirmation hearing, Justice Kavanaugh told Senator Collins Roe was “settled law.” Similarly, Justice Gorsuch called Roe the “law of the land.” As it turns out, Justice Gorsuch did not complete his sentence; he should have said, ‘Roe is the law of the land for now but I will vote to overturn the case,’ if he wanted to be honest with the American people and the United States Senate.
Democrat Senator Joe Manchin echoed Senator Collins, saying, “I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans.”
Justices Kavanaugh and Gorsuch are liars and political operatives. It is time to end life-time appointments to all federal courts, including SCOTUS.
Lying to the Senate about one’s judicial opinions is perjury. Federal law makes it a criminal offense, “having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered,” to “testify, declare, [ ] or certify truly . . . willfully and contrary to such oath states or subscribes any material matter which [the declarant does] not believe to be true.” (18 U.S. Code § 1621.) (Emphasis added.) Congress should investigate and subpoena everyone involved in Justice Kavanagh’s and Justice Gorsuch’s confirmation hearings to discover evidence of subordination of perjury. If the Justices conspired to deceive the American People and the Senate, by withholding their true beliefs about Roe and Casey in order to win confirmation to the Court, they are guilty of perjury. Considering Congress has the authority to investigate former President Trump, while arguing for his indictment, then the Justices are fair game for Congress and the Department of Justice. Justices Kavanaugh and Gorsuch should face a criminal trial.
Even without perjury, which requires proof beyond a reasonable doubt the Justices subjectively knew their stated opinions at the time of their hearings were lies, their conduct is far from the “good behavior” the Constitution demands. (Article III, Section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour[.]”) (Emphasis added.) A Justice who wins their seat on the Court by misleading the Senate violates the Constitution and ipso facto is not holding office with good behavior. (Article II, Section 2, Clause 2: “[The President] . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.”) (Emphasis added.) The Senate cannot give informed consent when a Justice withholds their true judicial opinions. By vitiating the Senate’s consent, Justices Kavanaugh and Gorsuch violated the Constitution and, on that ground, should be removed from office.
At an absolute minimum, Congress should pass laws forcing federal judges and Justices to retire when they reach “senior status,” viz., a certain age. After all, as the conservative Justices argue, the words “lifetime tenure” do not appear in the Constitution, and therefore the Justices do not have a constitutional right to serve until death. Forget ageism: age is not a constitutionally protected class (outside of the Seventh Circuit) and the Age Discrimination in Employment Act does not cover elected officials or those subject to Senate confirmation. The reality is older generations, especially boomers, have not only condemned us all to an uninhabitable planet within my lifetime, they are destroying what individual liberties we have left before the world burns. It is the duty of every American citizen to vote against this catastrophically incompetent generation in each and every political and judicial office they seek.
The American People are fed up with our government. No branch of government represents the will of the People. Washington D.C. is a cesspool of neoliberal and neoconservative fascists, warmongers, and shills for the corporate oligarchy. In my view, Senator Collins’s statement does not go far enough: SCOTUS has demonstrated the rule of law is subservient to the political biases of a few, old men and women. In truth, our country is ruled by realpolitik, force, deception, and profiteering. SCOTUS’s decision today forces people to choose between loyalty to the ideals of the Constitution or loyalty to an oligarchical political class’s biased interpretation of the text. Given such circumstances, I fear it is only a matter of time before the Cold Civil War turns hot.
In any event, Americans will never forget the United States, indeed the Constitution itself, was born from rebellion against tyranny.
When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
God willing, the global struggle for democracy against despots, and Americans’ will towards a government of the people, by the people, and for the people, will not perish from this Earth.