The Court’s Own Search for Rights
Terry H Schwadron
July 6, 2022
There are at least two things still proving difficult to understand in the Supreme Court’s rejection of abortion rights, and they are clouding abortion politics.
One is values-based rather than legal, the second is the continuing confusion over the law.
Why, for example, must anti-abortion forces insist that their moral beliefs must be in place for all — a principle that it is now clear we will be testing repeatedly over perceived rights to privacy, contraception, same-sex relationships and marriage and even interracial marriage?
If the U.S. Senate is just a few votes shy of either codifying the holdings of Roe v. Wade or outlawing abortion altogether, strictly as a political matter, aren’t we better off insisting that this issue be a matter of individual choice and lobbying as heavily as wanted for behavioral change rather than criminality?
The other is the legal mess in which that Supreme Court decision has landed us, in which even anti-abortion states cannot agree what laws and rules must prevail. Courts at all levels are scrambling and contradicting themselves about the law, about the Supreme Court’s ruling, about whether century-old laws in some states should now prevail. The messiness is keeping the abortion discussion front and center rather than settling it in any meaningful way.
The basic legal question here is whether “rights” emerge in an America in which it has seemed a value to extend civil rights and to support difference exist even when there is no stated provision in the 240-year-old Constitution. Could it really be that whether you have a “right” to privacy or speech or abortion will depend on your state address alone?
Indeed, until there was a significant ruling in the Supreme Court itself in 1803, there was no defined right of the Supreme Court even to review legislation. Hey originalists, you might take note that there is nothing in the Constitution that specifies the right of courts to declare legislative or executive actions as unconstitutional.
“The American Right has found in the framers an extraordinarily effective tool with which they can roll back social progress and undermine our democracy,” argues Washington Post columnist Paul Waldman.
Resulting Confusion and Fear
The news since the decision has been filled with public protest and defensiveness, the need to post guards outside justices’ homes, judicial and legislative confusion and missteps — and the inevitable emergence that a 10-year-old child rape victim was denied abortion in Ohio and taken to Indiana for a still-legal treatment because of timing.
Meanwhile, there has been no new effort to persuade about abortion, just to squash the other side. Arguments remain emotional and about the most extreme cases.
The idea of personal “rights” to control one’s own body are being lost amid a holy, moral war. The facts of abortion — who get them and why — are being wildly twisted into unrecognizable jumble; every day now there is a state legislator who says rape victims don’t easily get pregnant or that women are acting in a slutty manner. Abortions were halted even with patients on the table, several outlets reported.
It should be possible, no important, in our pluralistic society for there to be deeply held beliefs and practices for those who want them while treating the “right” to do so as a legal choice. Even this Supreme Court has not said that one view of all choice is to be considered dominant; if that was the right-leaning majority’s intent — to do away with abortion — this decision falls way short. But it did eliminate a national “right”
The right for choice was the expressed feeling about covid masking or vaccination, for example, and it seemed finally to win the day when cited or claimed “religious beliefs” were adjudged worth accommodation, even at the cost of spreading disease. It is how we have looked at gun ownership, for example, or licenses to drive, hunt or fish, or how we travel across state lines without having to show identity papers and explain that we don’t intend to break state law.
Those individual “rights” are the substance of being American.
That shouldn’t change because Donald Trump, Senate Republicans and the Federalist and Heritage Foundations nominated three judges who provided a politicized voting bloc on the court.
The Court’s ‘Rights’
The quirk that the court itself lacked the “right” to judicial review of other branches of government was revisited this week in a Politico.com essay by contributing editor Joshua Zeitz, who used the current legal messiness to look anew at the ruling that granted this practice.
“Liberal critics of today’s judicial activism are right when they note that the Supreme Court essentially arrogated to itself the right of judicial review — the right to declare legislative and executive actions unconstitutional — in 1803, in the case of Marbury v. Madison. There is nothing in the Constitution that confers this power upon the only unelected branch of government,” Zeitz said.
He explains that despite the lack of specific language in the Constitution about the court’s ability to knock down governmental actions, the Supreme Court of the time was correct in declaring the right to call legal balls and strikes.
The Constitution says only that 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.” But many of the framers assumed that some form of review was a given, just as there was a tradition among English courts.
That was a time of roiled politics as well and divide between outgoing President John Adams and incoming President Thomas Jefferson. At stake were some late judicial appointments of Adams supporters. The court intervened in the dispute, but the lasting part of the ruling concerned the court’s powers to review executive actions.
Roll forward to today. “After issuing a wave of hotly contested, and in some cases deeply unpopular, decisions, the Supreme Court has emerged in recent weeks as a formidable — and perhaps the most formidable — branch of the federal government. Six conservative justices, enjoying life tenure on the bench, are fundamentally reshaping the very meaning of citizenship. Their power to do so is seemingly absolute and unchecked,” said Zeitz.
Last December, during oral arguments in Dobbs v. Jackson Women’s Health Organization, the case in which the Supreme Court overturned Roe v. Wade, Justice Sonia Sotomayor noted that “there’s so much that’s not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.”
It seems a good time to remember that the Supreme Court itself had to find the “right” to set up the concept of judicial review of governmental actions. Hearing from this court that looking for language to establish new rights is extreme hooey — and as we can see from the current chaos, not very good governing either.