Conservative ‘Judicial Activism’
Terry H. Schwadron
May 4, 2022
What was all that talk in the confirmation hearings against “activist judges”?
Assuming the leaked opinion overturning legal abortion holds, the Supreme Court’s conservative majority just blew that away, along with respect for precedent and any understanding that Americans now see the court as an outwardly partisan political institution.
It’s hard to get more activist than that. Of course, what conservatives want is plenty of activism for what they want and none for progressive causes.
Publication of the leaked draft of the majority opinion overturning Roe v. Wade and effectively ending legal abortion as a national, constitutionally protected right shows this court majority is more interested in the moral principles held by a minority of Americans than in the practical effects for every woman in the country.
After reading the draft, it is difficult to conclude this is a legal conclusion and not a blatantly political one. It reads as a conclusion in search of legal justification. Though it claims not to do so, the opinion written by Justice Samuel Alito dangerously sets up anything that these five conservatives feel is a good result as legally justifiable — precedent or not.
The law didn’t change; the only change was the number of conservative-leaning justices. This is about the might of a majority of nine, not about a reflection of values of a country that consistently polls over 70 percent approval for legal abortion. Where does this court get its sense of legitimacy if not from the public or its own precedents?
Overturning Roe v. Wade
Indeed, the main argument from judges who have argued personally against abortion for years is that Roe was wrongly decided.
You don’t have to read all 98 pages; Politico boiled down the central arguments here.
It’s central claim — that abortion is not specifically named as a right in the Constitution — is ludicrously true. Neither are Freedom, Privacy, Gay, Sex, Contraception, Marriage, Transgender Executive Order or Monopoly written words addressed in the Constitution. That’s why there was a case that came before the court in the first place — and was affirmed or adjusted multiple times.
Why should we not believe that this same majority — Justices Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — won’t overturn same-sex marriage or access to contraception or various racial and gender protections that they feel do not reflect their personal values? After decades of public debate, we’re going to throw out abortion as a right by 5–4?
If everything is answered by the Constitution’s literal words, we wouldn’t need a Supreme Court.
Of course, given the volatility of the subject matter, reactions started building within moments of the release of this document. Voices favoring abortion as a right saw it as a blow, a diminution of rights of Americans, an opinion not supported by 50-plus years of polls and practice as well as legal precedent.
Conservative voices focused on the leak itself as reflecting an attempt to intimidate justices into changing their minds once they see the chaotic response. Sarcasm and dismissal were immediate among television’s talking heads.
It is absurd, of course, that news of this decision should spread by leak or errant pages left on a copy machine, but the how is hardly the issue that will forever change this country.
Several noted that these justices themselves were appointed by presidents who did not win the majority of popular votes.
Taking Away Rights
If there never was a right to abortion, went the argument, this decision couldn’t be seen as taking a constitutional right away from Americans.
At least a dozen states have “trigger” laws set to bar abortion upon dissemination of the court’s expected final decision; up to 26 states have laws to curtail it to the point of barring the practice. Some states like New York are boldly inviting women who need abortions to fly there. We can expect wide campaigns to provide transportation support for poor women in red states to be able to get an abortion. We can expect widespread protest. We can expect that abortion once again takes center stage in our fall elections, since the issue aligns with most candidates from Republican and Democratic candidates.
Meanwhile, Latin America is busy legalizing abortion. The Guttmacher Institute that studies abortion populations is busy distributing facts to underscore that most abortions are for women already mothers and that anti-abortion laws have had little statistical effect on reducing abortions. And serious people are busy comparing the various state decisions barring abortion with the level of support in the same states for public education, with monies for child services and with health care generally. Democrats will be busy looking to change the court membership.
The decision makes clear that abortion properly belongs as an issue for the legislatures of the country, even the Congress, but not for the court.
Our legislatures are dysfunctional.ly partisan if they function at all. The legislatures acting to limit abortions are the same ones setting themselves up to overturn election results they don’t want. The more usual practice is stagnation on important issues.
Yet it is the court itself that is dissolving this right, not any vote in Congress.
What About Choice?
You don’t have to endorse abortion operations to support individual choice. Retaining the legal right to abortion doesn’t tip the scales towards more personal decisions to undergo an operation; it makes it an operation that can happen in clinics and hospitals rather than in back alleys or self-administered.
The very same justices have opposed government mandates about mask-wearing or other public health measures as government overreach. The very same justices have been building additional legal protections around expression of religion when that right is seen in conflict with some other right, like marriage.
The through-line has been support both for literal mention of freedom of religion in the Constitution and individual choice. That has justified decisions to push back government regulation or oversight or mandates to preserve our individual right to decide.
Except in abortion.
That the state or perhaps now even the Congress may specifically bar legal abortion just will force workarounds, healthy or not. These justices do not see abortion as a health issue, or a problem for incest and rape, or a matter of choice about lifestyle and economics.
The abortion issue is so visceral that Americans should be able to connect politics with elections that result in the Supreme Court membership.
The jarring effect of this abortion decision is itself the strongest argument to put term limits on judicial appointments. And maybe we should just lose the confirmation questions about judicial activism.