Trust Not in Judicial Princes
Oddly—or maybe it’s not odd after all, given the power of habit—Americans have come to consider the United States Supreme Court as, well, supreme: garlanded, perfumed, raised in immensity over imperfect surroundings. Or—as Ol’ Blue Eyes put it in a lustier context—“A-number-one . . . top of the list . . . king of the hill.”
Ain’t no supremer anyway than “supreme”—an operative factor, no doubt, in the public’s appreciation, or non-appreciation, of the Court’s heavy influence over our thoughts, words, and actions. And intentions. Thus when the justices announce they will hear arguments in a case (Dobbs v. Jackson Women’s Health Organization) abutting the integrity, so to speak, of Roe v. Wade, pulses flutter, throats tighten. By gosh, this is a big one. Fasten your seat belts.
Will the Court, scrutinizing a Mississippi statute that outlaws abortions after 15 weeks, show judicial disgust with the handiwork of its predecessor tribunal in 1973, declaring Roe a judicial dead letter, along with the key controlling case of Planned Parenthood v. Casey? Or will the justices merely muss up Roe and Casey a little bit, leaving them bruised but still standing? The Court will do something; we just don’t—obviously—know what.
The present moment was foreordained. What the Court had purported to settle in 1973 was a matter unsettleable by the familiar means of judicial pleadings, recourse to thick statute books, and the earnest knitting of brows at mahogany conference tables. The question at stake was life—unborn life. Men, and nowadays women, of the law are supposed—at the barest minimum—to take deep breaths before overthrowing centuries of law and moral understanding, instructing onlookers, more or less, “Get used to it!”
A reckoning—that favorite term of the “woke” movement—could be at hand. We know Justice Clarence Thomas, an acute critic of Roe, would sweep away, if he could, Roe and its offspring. Justice Sam Alito would likely join in the effort. A couple more justices—possibly a majority of the Court?—might be enlisted in the cause. Well, not Sotomayor. Not Kagan. Not Breyer. The chief justice? The delicacy of his juridical touch is well known: of which there is maybe no more to be said at present.
May a non-lawyer suggest a recess from mind-reading and attendant references to precedents and word meanings? I suggest we might wish to step out of the courtroom and there give attention to the “supremacy” question—a point overdue for some attention.
I put the question thus: What’s “supreme” here, a cobbled-together legal viewpoint by the U.S. Supreme Court, with dissents and concurrences appended to the bottom—all on account of this being capital-l Law, the handiwork of capital-l Lawyers? Or what if all this lawyering and judging can be construed as mere evasion of the actual supremacy question? Which would be, in barest essentials: The supremacy with which we are nominally so concerned in court lies . . . where? In precedents? In statutes? In formalized pleadings before the bench by personages in starched apparel?
Umm . . . not exactly, I would say. Doesn’t “supremacy” lie in the wishes and expectations of the culture in whose name, supposedly, judges judge and legislators legislate? Why the general deference over so many years to onetime law-school hotshots pretending to instruct us all in a new theory of the rights or non-rights of unborn citizens of the United States—and of the Kingdom of God if you want to get down to it? No court, howsoever “supreme” in wisdom and authority, seems capable of addressing the profound questions raised by Roe and succeeding cases.
Abortion for the sake of getting rid of the bothersome and undesired is only on the surface, I would say, a matter for judges to take on and decide. That is surely one of the reasons the Supreme Court, prior to Roe, never asserted its supremacy over a matter conspicuously beyond its competence. Legislatures had legislated the prohibitions the Court overturned in Roe.
So. Wasn’t that in effect a kind of political “supremacy”—coercion of the unwilling (women desiring abortion) by those (lawmakers) with the power to coerce? Not a bit of it. For two reasons:
1) A democratic legislative body acts with the implied consent of those it governs—with the assistance of the other two branches of government, executive and judicial. Its enactments are subject to change or modification—or outright repeal—at the instance of the people.
What is rightly understood as the tyranny of Roe consists partly in the people’s inability to overturn it. Only the Supreme Court has, practically speaking, the power to undo its own handiwork. The Court can say, whoops, sorry, we blew it! Or it can say to those parties objecting to its wisdom: Go take a flying leap! Such is the advice the Court majority has for the nearly half-century of the Roe regime dished out for those unimpressed by the logic of sure-it’s-your-constitutional-right-to-extinguish-your-baby’s-life.
2) The larger, broader reason for the intervention of democratic legislatures in protecting unborn human life—a power taken away from them in Roe— has to do with life itself: its origin, its nature, its responsibilities. Legislatures are supposed to represent the people, and the people’s ideas, which may vary substantially from the ideas of judges. And do sometimes. And should.
Take abortion: about which there are significant matters to bring up in addition to its claimed effects on the rights of women. Prof. John Finnis of the Notre Dame Law School tackled this immense question head-on in a recent First Things article (April 2021) titled “Abortion Is Unconstitutional”—that is to say, as a transgression of ancient understandings of what it means to be a “person,” enjoying the protections that follow from that station.
Finnis is a distinguished advocate of the historic premise that humans know, on account of their access to the natural law, what is right and what is, by contrast, wrong. The natural law is natural. It instructs us that life matters, that individuals have absolute rights to personal security, personal liberty, and personal property. Finnis quotes Sir William Blackstone, the great English jurist of the 18th century, writing in observance of these rights. To wit: “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.”
An English law of 1803, Finnis relates, “made it a felony to attempt abortion even before the child was provably ‘quick.’” The framers of the Fourteenth Amendment (the incorrectly imputed origin of abortion rights) poured Blackstone and natural law into their undertaking. The great majority of legislatures that ratified the amendment understood that “prohibiting the killing of the unborn is a matter of simple justice to the most vulnerable among us.” This says to Finnis that “abortion is unconstitutional.”
Well. Hmm. There is impressive thinking in this elegant essay which every pro-life advocate ought to read. It seems that way even to the great unwashed who never attended law school, or desired to. The operative question—exhumed from the mound of whereases and therefores that lawyers heap up wherever they go—is what might we expect the Court not just to recognize but actually to do, and by what kind of numerical margin. I am of a mind that we should not let our hopes run away with us. And that, in any case, we ought never to be caught putting our trust in judicial princes.
The essential question before the Court isn’t so much who’s right and who’s wrong. “The dictatorship of relativism”—Pope Benedict XVI’s telling phrase, characterizing the moral regime that presently has us by the throats—will barely countenance the recognition of simple “right” and simple “wrong.” Do not both commodities exist in the eyes of those who behold them? And isn’t that OK? Because what’s true for you may not be true for me, and vice versa; and in our great democracy, whose purpose seems to consist in the establishment of new rules for “equity” and “diversity,” the musings of the long-dead cut little if any ice.
You will find the New York Times and MSNBC, not to mention assorted wokes and progressives, infinitely less interested in William Blackstone and his modern trainbearers than in timelier-seeming questions. Among those questions: How and when are we finally going to break the grip of the white male oppressors? When are we going to acknowledge, as it has come to be recognized, the right of women to control their bodies, the inside as well as the outside—this, over against society’s asserted premise of a duty to care for and protect the infant in the womb?
No respecter of unborn life rejoices in the force these questions have lately assumed. I point to them as pointers in turn to the modern understanding of supremacy: which is the understanding we have to get past and over before the unborn regain their lost place on the scales of human compassion and mercy. A great many—who can hardly be blamed for the aspiration—hope the Supreme Court can yet be turned around, through legal argumentation, in its indifference to the life of the race of which all are a part—the human race; conceived, brought into the light of day, nurtured, sent along on the unending (so far) human journey. Could the Court, by what would certainly prove a narrow margin, actually strike down Roe? It could, certainly. Would it? With what effects beyond the removal of judicial approval for abortion? The overthrow of Roe would mean, beyond that . . . the Lord only knows what. Would the years roll away and the moral lineaments of the 1940s return? No more Planned Parenthood? No more NARAL? Just billing and cooing over the sweetness of Gerber babies?
Such a conceit—which is all that a kindly notion of this sort deserves to be called—cannot hold water. As we say in Texas, that ol’ dog won’t hunt. We have to remember the Supreme Court itself was a willing, not to say an enthusiastic, instrument of the moral/sexual revolution. The seven who signed the majority opinion in Roe v. Wade stormed our moral Bastille, releasing those imprisoned by the prejudices of the past. The seven justices were in a sense “woke” at a time when woke was a mere past-tense verb.
The distinguished constitutional scholar Edward Whelan has taken polite exception to Prof. Finnis’s argument that personhood arguments could finish off Roe, seeing it as likelier the Court might restore to the states their lost authority over abortion policy. That would be something. Back we would go, nevertheless, to the supremacy question. Who’s really supreme around here? Isn’t that what we want to know?
Judicial edicts confer only so much legitimacy. If they conveyed more, wouldn’t the country have given in long since to the Roe regime? The startling, almost unprecedented perseverance of the pro-life movement testifies to the limits of moral aggression. Would there be now without moral resistance a Dobbs case awaiting adjudication, with much of the land stirred by a storm of agitation aimed at finding the right way forward, whatever the Court says? I think, whatever opinion the Court delivers, prolifers are entitled to strut a little. Counter-revolutionaries usually succeed only in getting their heads chopped off. Our rebels are in for a different, likely more agreeable, fate.
Still . . . the hopes of the parties at law, in Dobbs v. Jackson Women’s Health Organization, are rooted in questions beyond the competency of judicial minds. The courts don’t decide. The culture, in the end, decides. The mighty United States Supreme Court—its nine leather chairs reserved for the well-connected and at least moderately gifted—is supreme mainly on paper. Head of the heap, A-number-one, sure—in our constitutional arrangements. Less so—often much less so—in the discovery and exhibition of the important Truths by which humans live. Let us not deceive ourselves—whatever our hopes regarding the outcome in Dobbs—that a Supreme Court dispensation in such a mighty matter as this defines anything other than the preferences of nine more than ordinarily influential lawyers.
Whelan, in First Things, quotes Lincoln: “In this age, in this country, public sentiment is everything. With it, nothing can fail; against it, nothing can succeed. Whoever molds public sentiment goes deeper than he who enacts statutes, or pronounces judicial decisions.” The problem with American public sentiment on abortion is its present wavering nature. Americans don’t know quite what they want. As a people, they want it kind of both ways: respect in some measure for the unborn, freedom for claimants to personal liberty to get rid of “accidental” obstacles to the enjoyment of that liberty.
No assemblage of lawyers can resolve that ambiguity. “Public sentiment” can resolve it, provided sentiment—by teaching, preaching, moral example, the workings of goodness in the heart—can be returned to the older understanding of the unborn as people like the born, only smaller, more helpless, more dependent than ourselves on kindness and compassion. We could bring about this blessed state all by ourselves, with mighty jurists mere guests at a party indifferent to their presence or absence.
William Murchison, a senior editor of the Human Life Review, is professor emeritus of journalism at Baylor University. He is currently completing a book on moral restoration in the 21st century.