Before and After Roe

To understand Roe v Wade, one has to go back to Jim Crow.

A Court! A Court! My Kingdom for a Court!

In 1945, the United States stood astride the world like Atlas himself. The United States had everything and everyone else was either a pile of rubble or a primitive jungle. The United States held itself out as the beacon of democracy, liberty and plenty. And yet 10 percent of its population of 150 million were excluded from the paradise of the American Way of Life.

Negroes were not excluded by happenstance but by explicit laws (in the South) or through legal technicalities of one sort of another (in the North). It was no coincidence that civil rights activists (many of whom were Jews) began referring to Negro shanty-towns and slums as ghettos -- in an obvious allusion to the apartheid policies of certain foreign governments.

Segregation, if it was not morally reprehensible, was geo-politically untenable. We could hardly win the propaganda war against the Soviet Union when all Pravda had to do was print a “colored's only” water fountain on its front page. And truth it was too. Moreover, segregation was economically unfeasible as well. The United States won the war by becoming a well-synchronized engine of production and consumption, each phase in the cycle pumping and driving the other. Any society can tolerate a certain percentage of “dead wood” but there comes a point at which unproductive dross simply clogs the machine, which not only depends on but embodies the principle of circulation -- circulation of goods, services, labor and capital. If the pot isn't stirring it stagnates. The exclusion of 15 million people from economic activity of the nation was an impediment to commerce; and it was this very rationale that the Supreme Court relied upon in Katzenback v. McClure to strike down lunch counter segregation.

In short, the turn-of-the-century attempt to create a national American identity and the post-war attempt to created a uniform standard of living was stymied by the peculiar habits of the South. And yet the very Constitution which accorded equal justice to all was also designed to fail-safe the prerogatives of the minority which in this matter were represented by the Dixiecrats. Their choke-hold on the system was illustrated by the fact that in order to garner votes for his New Deal, Roosevelt agreed that New Deal programs would not necessitate racial integration. Now, twenty years, Congress was as incapable as ever of incorporating Africans into America.

To chip away at the impasse, the Supreme Court handed down its decision in Brown v. Board of Education (1954) which outlawed racial segregation in public, primary and secondary schools. The structure of the Court's argument was a straightforward application of the Equal Protection Clause which forbids state entities from treating persons unequally, and which had always been interpreted by the Court as forbidding unequal protection of the law on account of race.

The difficulty with the decision was its factual premise that separate was inherently unequal. In Plessy v. Ferguson (1896), the Court had held that separate was not legally “unequal.” As a geometric and logical conclusion, that holding was unassailable. Now, the Court ruled just the reverse on the basis of a handful of rather patently agenda-driven sociological studies. If indeed, separate schools are inherently unequal and represent a badge of inferiority, what are we to do with all those prep schools in New England? According to the Court's analysis, the denizens of those separated enclaves east of the Housatonic River were being deprived of an equal education. “You're damned right, we are; and proud of it,” might well come the derisive reply, snickered in segregated privacy.

Of course, on an intuitive level, the Court was completely right. Everyone knew the score. Even supposing that Black schools were truly funded equally, the whole apparatus was a denigrating construct that said: you are not part of us; you are strangers in our midsts. But it was a very dubious proposition that the law should seek to engineer social changes on the basis of select “studies” chosen by an extremely select few.

No one can argue that the Court had not taken sides on social and economic issues before. In fact, the law usually does. However, here, the context and manner in which it does so is significant. In the Middle Ages and through the Reformation, the law was frankly sectarian; it legislated customs, habits and beliefs. The French and American liberal revolutions swept that away and relegated the law to maintaining order in a laissez-faire economy. There were many more or less small breaches of this supposed neutrality but in the main the courts assumed that their role was that of a neutral umpire.

De libertate pistorum (On the Liberty of Bakers)

To be sure, “judicial neutrality” as much as a “free market” is a canard. There is no such thing as a market left on its own. The Constitution itself contains numerous provisions allowing for government stimulation and regulation of, science, the arts and so on. There was nothing free about massive grants of lands to railroads in the 19th century, except of course, that they were free. Nor was there anything very neutral about the Supreme Court's outlawing of labor “combines” (unions) while merrily protecting capital “combines” (corporations).

In Lochner v. New York (1896), the Court let the cat out of the bag by invalidating a state law limiting bakers' working hours on health grounds. The Court's ruling had a factual and a legal basis. Factually, the Court found that baking was hardly hazardous to one's health. Why grandma Peckham bakes every day! Factually this was totally incorrect, baking long hours daily is extremely hazardous to lung and musculo-skeletal health. Justice Peckham, who wrote the Court's opinion, simply pulled a fact from his ass. Legally, the Court's ruling was based on reading a non-enumerated right into the Constitution; in this case, the right of an “employee or employer” to freely contract his own hours. On what basis could the Court do that?

The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This sentence plainly pre-supposes that rights can exist without their being listed in the Constitution or, for that matter, enacted by the legislatures. This, (in my opinion) is the singular feature that distinguishes French from Anglo-American liberalism.

In the French system, the State -- as interface for the Sovereign People -- is the originator of all rights. If it gives you a right, you have it; if it doesn't, you don't. In the American system, it is just the reverse. Rights are inherent in the natural condition of Man. Whatever they may be, you had them at birth. The phrase “God-given rights” is not merely a rhetorical embellishment, and when certain fundamentalists say that the country is founded on a belief in God they are not totally off-target. When you try to explain this to a European (that is, a person acculturated to the Civil Law tradition) they look at you as if you are completely out of your mind. “Right” is a social construct; it does not exist “in Nature” or at all except it be created and acknowledged by men. That is as obvious to them as “certain self-evident, inalienable truths” are evident to the Flawless Obambi, who never tired of quoting that cherished document, signed, 12.25 score years ago.... But I digress.

With this difference in mind, it can be understood that the Bill of Rights is not a declaration of right but a reservation of rights; and it will be noted that the rights are invariably phrase in the negative as something the Government cannot infringe upon. Thus, in Federalist Paper No. 84, Hamilton wrote,

“It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgements of [royal] prerogative in favor of privilege, reservations of rights not surrendered to the prince.”

The structure of the Bill of Rights (or Limitations on Government) is itself interesting. It begins by alluding to the rights of conscience, speech and assembly. It then reserves the right of armed personal and popular self-defence, before going on to protect the sanctity of the home, “except in time of war.” It then lists, in the Fourth, Fifth, Sixth, Seventh and Eighth articles the delimited ways in which the State can encroach upon and ultimately deprive a person of those rights.

Although these rights are often referred to as enumerated rights, it would be more accurate to refer to them as alluded rights. But either way, as any European would point out, the Ninth Amendment contains a massive principle of anarchy. If, indeed, each one of us has and reserves unto ourselves an infinitude of “other” rights, why can't anyone of us assert, as a self-conceived right against the State, the right to fetus flush at will, for example?

Avoiding anarchy, throughout most of the 19th century, the courts of the land interpreted “constitutional rights” as those mentioned by name in the Constitution (whether by enumeration or allusion) and that was that. In practice, however (putting aside the now irrelevant issue of whether the Bill of Rights applied to the States at all), these rights boiled down to two: the right to shoot your mouth off and the right keep and bear arms. In addition you had “half a right” to privacy in your person and home except in exigent or exceptional circumstances. No one questioned the power of the states to regulate all sorts of commercial and personal activity and behaviour, including laws against unmarried cohabitation.

Then came Lochner which discovered a “liberty right” against having your contract interfered with. Article One, section 10 of the Constitution forbids the states from passing any law “impairing the Obligation of Contracts.” This clause was intended to prevent the then prevalent practice of powerful kingfish in the several states using their legislative powers to repudiate their debts. (Yes, indeed, only in Murka, debtors' revolts of the rich!) Instead of prohibiting just that, our Infallibly Wise Framers,used an incredibly over-broad phraseology which no one in their right mind could take literally.... until Lochner.

Seizing on this clause, the Lochner court read into the Constitution a substantive right of “freedom of contract” akin to freedom of speech. The Court did not hold that contractual relations could never be curtailed or limited. It simply held that the right to contract was an alluded to right and that the State had the burden of justifying any curtailment or regulation of that right. The “and” part was significant because prior to Lochner it was sufficient for the State to duly and regularly enact whatever regulatory law it wanted. Now, in addition to enacting its laws with due process the State could also be called on to justify, in substantive terms, the reason for its legislation. Hence the term “substantive due process.”

Lochner was a perfect example of how a legal scintilla produces massive changes or a perfect storm. The case did not announce a corporate free for all. Its ruling ostentatiously protected the rights of “employee or [psst] employer.” And it “merely” called upon the State to justify it's intrusion to an “obvious” liberty. (“Merely” is probably the most favourite word in Anglo-American caselaw, and whenever you come across it in an opinion, you best run for the hills.) What the Court merely did was declare itself the arbiter of any and all contracts in the land.

On what basis was it to decide these contractual disputes? Without going into all the wrinkles, the “test” it used was to ask whether there was a “rational basis” for the law or regulation. And what did that mean? Casting into the flames reams of judicial prose, it meant simply whatever the Court wanted it to mean.

It has been said that Lochner was overruled in Westcoast Hotel v. Parrish (1937), but that is an oversimplification verging on plain wrong. Lochner did not prohibit regulation and Westcoast did not suddenly allow it. To this day, the Court continues to recognize a “liberty interest” or “freedom” under the Contracts Clause. The difference is that under Lochner the state had to justify its regulation whereas after Westcoast there is a presumption that the state legislature made a proper judgement that the regulation was expedient for the public interest. Basically, under Lochner and interference in the economic free-for-all was suspect; now, it is virtually the reverse.

The step-back from Lochner had huge economic implications. Whereas, under Lockner, the federal government had favored free market capitalism, it now favored regulation of the economy in the name of the general welfare. However, as important as this policy change was, it was also significant that it was the political branches of government that were making it. The Supreme Court itself, as an institution, stepped back from the fray. Whereas before it had stepped in in order to issue rulings in favor of corporate “liberty,” now it stepped out altogether and deferred to whatever policy choice Congress and the States came up with.

This change did not mean that the Court approved of everything and anything Congress and the States did. The Court still retained the prerogative of declaring a law unconstitutional. But this was a judicial veto as opposed to a policy choice made by judges.

The distinction is perhaps clarified by remembering that the key to Lochner was Justice Peckham's determination that baking did not present a serious health problem such as required regulation. Whether or not baking is a health risk, whether or not physical labor stunts a child's growth, whether or not women are capable of the demands of commerce, whether or not the education of Negro children is adversely affected by segregation are all socio-factual questions and not legal ones. The answers to these questions may affect what policies are enacted and, once enacted, these policies have legal implications (by which is meant that they have to be consistent and compatible with other laws), but the questions themselves are not “legal” or “judicial.” The judicial question is, as just stated, how an enacted law squares up with other laws and whether it is compatible or inconsistent with them. Go beyond that brief is what is meant by the overused adage that the courts' business is to “not to make policy but to interpret the law.”

This view clashed sharply with the rise of the New Jurisprudence (my term). In the last quarter of the 19th century, and in reaction to the triumph of liberal capitalism, there arose in Germany, France and the United States what is today called the Progressive Movement. In the United States, it was originally known as the New Nationalism, typified by Teddy Roosevelt's Osawatomie Speech which called for a national redistribution of wealth.

SOCIOLOGICAL JURISPRUDENCE

In tandem with this political movement there arose in Germany a new approach to law called Teleological Jurisprudence the aim of which was both to interpret law and to make judicial decisions in light to social and economic realities. In the United States, this approach to law was cribbed by Harvard dean, Roscoe Pound, and is called Sociological Jurisprudence. As an academic matter, Pound's approach to law stressed examining the actual social effects of legal doctrines and practices and, conversely, the influence of social phenomena on the substantive and procedural aspects of law. As a practical matter, sociological jurisprudence meant tailoring the law to achieve socially desirable ends. In an equally well-worn phrase, law became viewed as a “tool of social engineering.”

And who is to be the engineer? Me! Me! Me! said then attorney Lewis Brandeis. It is the irony of ironies that at the height to the “Lochner Era” the Court adopted as its own the famous Brandeis Brief which was quite literally 98% sociology and 2% law. In Muller v. Oregon (1908) the Court upheld state laws restricting the number of hours women could contract to work for. And on what basis was this denial of Lochnerian Liberty upheld? I shall let the Court's majority opinion speak for itself.

"It is undoubtedly true, as more than once declared by this Court, that the general right to contract in relation to one's business is part of the liberty of the individual, protected by the Fourteenth Amendment to the Federal Constitution; yet it is equally well settled that this liberty is not absolute ... ,

"In the struggle for subsistence [a woman] is not an equal competitor with her brother."

"Her physical structure and a proper discharge of her maternal functions — having in view not merely her own health, but the well-being of the race — justify legislation to protect her from the greed as well as the passion of man.

"Woman has always been dependent upon man.”

“The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all.”

. . .

“For these reasons, and without questioning in any respect the decision in Lochner v. New York, we are of the opinion that it cannot be adjudged that the act in question is in conflict with the Federal Constitution so far as it respects the work of a female in a laundry, and the judgment of the Supreme Court of Oregon is affirmed.

“For these reasons” was just a short spoupçon of the massive compendium of sociological facts, figures, studies, and comparisons of legislation in the several states and foreign countries, scrambled up by Brandeis.

Muller was not, in principle, entirely inconsistent with Lochner. In Muller the Court found no more than that the protective legislation was a reasonable curtailment of contractual liberty in light of all the studies advanced. But these studies had been adopted by a plethora of state legislatures and foreign countries. In Lochner the court invalidated a law based on its view of what was “common knowledge” about the health risks of baking.

In fact, Muller was rather consistent with Westcoast to the extent that it could be assumed that the Oregon legislature had examined at least some, if not many, of the studies Brandeis had cited and had, on that basis, arrived at a legislative findings that women needed workplace protections. What both pre Lochner jurisprudence and Westcoast disavowed was the Court making those sociological and policy determinations for itself.

Thus when we come (or return) to Brown v. Board of Education, it can be seen that in that case the Court actually returned to a Lochnerian methodology: it based its rulings on sociological findings it was making. (They certainly had not been made by the Southern school districts!) Instead of “Baking is Not Unhealthy” we got “Separate is not Equal.” It was permissible, for Brandeis as an attorney to cite studies the Oregon legislature could be presumed to have relied on, it was not by the same token proper for Warren, as a judge, to strike down laws as unconstitutional based on his own sociological view of the matter. When the uproar went up that the Court was doing the sort of things that ought to be left to legislatures, the uproar was right.

Ten years after Brown, the Court handed down its decision in Heart of Atlanta Hotel v. United States, in which the Court invalidated segregation in hotel accommodations. In the companion case Katzenbach v. McClure, the Court also invalidated lunch counter segregation. But, although those cases advanced the cause of integration, they did not apply or extend the principle of Brown because they were both based on the Civil Rights Act of 1964. It was Congress who had done all the social studies and who had made all the policy decisions. It was only up to the Court to decide if that “squared with the Constitution” -- more particularly, if it was a legitimate exercise of constitutionally authorized congressional power under the Commerce Clause. Atlanta Hotel and Katzenbach were as much “traditional law” as Dixiecrats might holler' at having their toes stepped on.

PENUMBRAL PRIVACIES

Nevertheless, the idea arose that if law was a tool of social engineering, the Supreme Court could be used as the engine. This idea arose because it was so impossibly difficult to get anything through Congress on account of the fact that system itself was designed to choke legislation as much as to enact it. To be blunt: it would be easier to convince nine men, who were at least supposedly “reasonable” than convincing 480 men who were impossibly corrupt.

The Court itself encouraged this notion by handing down decisions like Miranda, which was based on social studies “finding” that in custody interrogation was “inherently coercive” and Mapp v. Ohio which extended the exclusionary rule to States on the Court-found finding that requiring states to exclude illegally seized evidence would “teach” cops to be better citizens. Both of these cases fell within the traditional ambit of what kind of evidence a court will allow in its forum. They nevertheless did nothing to dampen the idea that Court could be used to effect social change.

Spearheading the change was the cry of My Penis my Choice! The state of Connecticut had outlawed condoms -- “any drug, medicinal article or instrument for the purpose of preventing conception.” Criminally convicted, the petitioners appealed. They might have argued that there had been no proof of an intent to prevent contraception at the time of usage; that, even with one's wife, a condom could be used for purely sanitary reasons. Instead, petitioners appealed on the ground that their “right of marital privacy” had been infringed in contravention of the Due Process Clause of the Fourteenth Amendment. Alas, nowhere in the Constitution is a “right of marital privacy” explicitly reserved. I will let the opinion speak for itself,

“Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments  suggest that Lochner v. New York, 198 U.S. 45, should be our guide. But we decline that invitation as we did in West Coast Hotel Co. . . . We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.”

[The Court then reviewed a string of cases upholding the right to educate one's children au goût, the right to study German, the right to receive such literature as one desires, and so on.]

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. 

[The Court then reviewed how the idea of privacy was implicit in Third, Fourth, and Fifth Amendments. Then too, there was always the Ninth.]

“The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”

Justices Brennan, Goldberg and Warren concurred in the result but would have preferred to root the decision unequivocally in the Ninth Amendment which, they said, was intended to “protect[] those liberties that are 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.' "

If the majority shied away from that stance it was because they feared becoming Super Framers as much as they shied from being Super Legislators.

That said, the concurring justices went on to state that “it should be said of the Court's holding today that it in no way interferes with a State's proper regulation  of sexual promiscuity or misconduct. . . .

"Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, ... It is one thing when the State exerts its power either to forbid extra-marital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy."

In other words, when we say “privacy” we mean this kind of privacy not that kind of privacy. It was a completely untenable inconsistency given that the Court had just previously cited the right of free association as one of enumerated emanators of the concept of privacy.

Nevertheless, having accorded constitutional protection to sheaths, the stage was set for the dealing with the issue of fetus flushing. As is well known by now, in 1973, the Court handed down Roe v. Wade which held that Texas could not restrict abortions to situations in which the mother's life was imperilled, because the Due Process Clause of the Fourteenth Amendment “protects protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.”

The Court began, you guessed it, with Lochner. “We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York... ' [The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.' “

Having disavowed Lochner, the Court went on to examine whether either the penumbral right to privacy or the Ninth Amendment reservation of rights included the prerogative of a woman to abort her pregnancy. After a lengthy historical review of state and foreign legislation , the Court concluded that it did, at least prior to the “quickening” of the fetus. “This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”

One might have left it at that. After all, Griswold did not set out a complicated scheme for evaluating when and when not a condom could be used. Similarly if one has a free speech/privacy right to read books of one's choosing, does the Court delve into which books you can read at which time of your life?

This is not to argue that privacy rights are absolute. It is accepted that no right actually is. It is simply to say that for purposes of deciding the case at hand it was sufficient for the Court to say that a woman had a constitutional privacy right to abort her fetus, prior to “quickening” and for reasons other than the medical necessity to save her own life. This italicized portion tailored the holding to the facts of the case, which is what a well turned holding should do. Instead, the Court went on to open a can of worms.

It began by listing the psychological, social, financial and professional harms, stigmas and detriment that “may” ensue from infringing on a woman's right to terminate her pregnancy. In this curious passage, the Court subtly shifted from affirming a penumbral right already found to exist as a matter of legal interpretation to justifying why the right should exist. If indeed, at the time of the Constitution's ratification, courts in England and the United States allowed abortion, in a woman's discretion, prior to quickening, then fetus flushing was a reserved right under Constitution, and that was that. Similarly, if indeed, the lengthy historical review showed that abortion was deemed by the vast majority of legislatures to be an “implicit” fundamental privacy right, then that too was that. Delving into the whole mushy sociology of why the right should be declared to exist is the sort of thing legislatures, not courts, do.

Rejecting the petitioners' claim that the right was unrestricted and absolute, the Court stated “As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.” It then went on to decide when that some point arose and what “weighing of factors” had to be evaluated at each stage of pregnancy. As summarized by the Court itself,

"A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. (At pp. 164-5.)

All of this is an admirably logical scheme. The only problem with it was that it was not the brainchild of any legislature but was the Court's own fetus.

It bears repeating that when the high court declares a right to be “fundamental” it is not (avowedly) making that decision for itself. It is, rather, taking the soundings of what other courts, other countries, and other legislatures have themselves considered fundamental. There was a protracted debate within the Court throughout the late 19th and early 20th centuries over how to determine what is “fundamental” under the Fourteenth Amendment. A similar analysis presumably applied to determining what was “reserved” under the Ninth. If the analysis is conducted honestly and with restraint it comes squarely within the ambit of “legal analysis and interpretation.” The Court is simply deciding what the evidence demonstrates has been our legal custom and usage. If there are inconsistencies, that too is a legal matter which the Court exist to iron out. What is not legal is mapping out executive and managerial expediencies; i.e. on how, best to carry out an objective within the limits set by law.

Roe was a very muddy decision. For the most part, it adhered to a non-sociological fundamental rights analysis. But it muddied these waters by dragging in medical and theological (Catholic, Jewish, Protestant) opinion as to when human life began. It further confused matters by not drawing a distinction between human life and legal personhood. At that point, it then became the Super Legislature it foreswore being by prescribing the contours of permissible legislation.

It might be said that the Court was simply trying to save itself a forseeably long trail of case-by-case adjudications; to “speed things up” as it were. But the Court does not exist to forestall cases and controversies but rather to resolve them. The Court knew it was staring into a hornet's nest and it walked right in.

Equally to blame were agenda driven hot-heads who brought the case in the first place. In a sense, both Griswold and Roe were not “honest” controversies. They were controversies engineered by activist reproductive rights groups. Both cases were bogged down by a number of questionable procedural and standing issues. The all too transparent aim was to use the high court as a “tool of social engineering.” In allowing itself to be used in that manner, the Court politicized itself.

The petitioners can also be faulted for pushing their radical and extremist position that women had an absolute, categorical right to fetus flush. As lawyers they ought to have known that no court ever accepts a right as truly absolute. They ought to have known that the legal history they cited did not support such a stance. They were simply angling for a legislative touch-down. In my view, they can hardly complain that their advocacy triggered the inevitable and foreseeable push-back. In the end, the Court never avoided the parade of litigation it had hoped to avoid. Now the piper has to be paid.

In my view Brown and Roe represent the high court at its most sociological and political. In all the other cases, including Lochner and despite foreseeable political repercussions, the Court could always plausibly stand behind the artifice of interpreting and harmonizing law. That might sound like a narrow brief, but it has a rather wide compass, as the history of New Deal legislation showed. The Court is of course “political.” It is, after all, an institution of government which as as polis-like as you can get. But, as we have said before, it is the difference between the politics of desire and number (legislative) and the politics of “what the words will allow” (judicial).

It does not strike me as coincidental that the cases which have had the least actual impact were Brown and Roe. Roe because is settled nothing and Brown because it solved nothing. What could be more absurd than demanding integrated education in a segregated society? What was the point to created islands of integration (called “schools”) in a sea “Coloreds Not Allowed”? What were the equally and better educated Blacks to do with their degrees. Using the Court as the avant guard of reform strikes is highly dubious.

MISH-MASHED MUMBO JUMBO

After "settling" the abortion question, the Court decided to swing a blow for gay rights. In doing so, it revived Lochner as Judicial Opera. In Lawrence v. Texas, the Court invalidated a statute making it a crime for two persons of the same sex to engage in sodomy (as in anal intercourse) on the grounds that the law violated the fundamental liberties provision of the Due Process Clause. Why? Because “[l]iberty protects the person from unwarranted government intrusions into a dwelling or other private places. . . . Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

And what precedent of custom, or statutory or common law supported this supposedly acknowledged fundamental right? Why “[i]n Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counselling or aiding and abetting the use of contraceptive”  The opinion in Griswold was “part of the background for the decision in Roe v. Wade” and so too "Roe and Casey  show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.

This grand mish mash was trenchantly debunked by Justice Scalia who pointed out that Griswold had been decided on a theory of inferred rights emanating from enumerated ones; and that it hardly made sense to invoke a theory of acknowledged fundamental customs and usages, and at the same time to speak of an “emerging awareness” and of the Court's “own failure to appreciate the extent of the liberty at stake.”

Justice O'Connor would have struck the statute on the far simpler ground that it violated Equal Protection to criminalize homosexual as distinct from heterosexual sodomy. O'Connor was correct. Supposing for the sake of argument that the state had a legitimate interest and rational basis for outlawing sodomy, there was no reason to criminalize only sodomy between men; the act was the same, the injury of damage to the sphincter was the same, the filth was the same and the non-reproductive purpose was the same. Far simpler and to the point to state those facts than to launch one's self into an airborne flight of hot air.

Rather than return to prose, in Obergefell v. Hodges, the Court launched itself into a sequel judicial aria, holding that the withholding of a marriage certificate from homosexual couples who applied for one violated both the Due Process and Equal Protection clauses.

As for the latter, “[t]he fundamental liberties protected by this Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. ... The right to personal choice regarding marriage is inherent in the concept of individual autonomy. Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.” Fiat lux! Ipse dixit!

Okay, but, as we have seen, fundamental rights analysis under the Due Process Clause requires a showing that these rights have been acknowledged, either by legislation or by a moral consensus or in a near universal accord among humankind. As for this, the Court informs us that “[t]he nature of injustice is that we may not always see it in our own times. ” In other words, there wasn't so much as a hot air basket to float in when it came to legal custom and the usages of a rather homophobic mankind. “The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” Outdoing even Lochner, the Court simply read its “better understanding” into the concept of ordered liberty.

When it came to the Equal Protection Clause, the majority was on much firmer grounds. The family is the bedrock of all societies and the right to form a family union the most fundamental of human rights and, indeed, necessities. In Loving v. Virginia, (1967), the Court had held that outlawing inter-racial unions violated the Equal Protection. It followed necessarily that, given the social utility and personal benefits of marriage, outlawing same-sex unions did not serve a rational purpose. There was no need for the Obergefel majority to palaver about the “synergy” between the Due Process and Equal Protection clauses... or what might snarkily be called their “mutual penumbras.” Reading rights out of the shadows is not clear law.

Justice Roberts conceded the essence of the equal protection argument but argued that the real issue was the State's right to define “marriage.” No it wasn't; at least no more than there was a state right to define “human being” as excluding Negroes. Marriage at its most basic is the committed partnering of two human beings. The socio-economic utility, the societal stability, and the personal benefits are the same whether the couple is young and fertile, old and sterile, mixed nationality or mixed race or mixed religion. That is the end of the matter from the point of view of a secular state's interest. All the rest is religion. Justice Scalia actually did not have much to outrage over when it came to Equal Protection, but his dissent was a tour de force when it came to the fundamental liberties of the Due Process Clause,

"The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion's showy profundities are often profoundly incoherent. "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality." (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can "rise ... from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, "[i]n any particular case," either the Equal Protection or Due Process Clause "may be thought to capture the essence of [a] right in a more accurate and comprehensive way," than the other, "even as the two Clauses may converge in the identification and definition of the right." (What say? What possible "essence" does substantive due process "capture" in an "accurate and comprehensive way"? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses "converge in the identification and definition of [a] right," that is only because the majority's likes and dislikes are predictably compatible. I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today's opinion has to diminish this Court's reputation for clear thinking and sober analysis. Hubris is sometimes defined as o'erweening pride; and pride, we know, goeth before a fall. The Judiciary is the "least dangerous" of the federal branches because it has "neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm" and the States, "even for the efficacy of its judgments." With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the "reasoned judgment" of a bare majority of this Court—we move one step closer to being reminded of our impotence."

Scalia was perfectly right. We have seen how the Court has gone from inserting a personal belief about bakers' health into the Constitution, to palavering sociological mumbo jumbo about the inequality of segregation, to writing medical-psychological fault-lines and factors into the Due Process and/or “Penumbral Clause” and finally to a full descent into Jurisprudence as Mumbo Jumbo. Like pornography, the average Joe on the street might not understand why it is mumbo jumbo, but he certainly knows it when he hears it. The phrases skewered by Scalia just sound like bullshit, and they do so because they are. The Court had descended into using words as a kind of advertising flash-bang. Sound and flurry signifying nothing.

Nor was this new propensity limited to the area of personal autonomies. In upholding the Affordable Care Act, Justice Roberts, who so worried about respecting the definition of marriage, had no compunction styling the insurance mandate as a “non-tax tax.” One might have thought the the Lochnerian liberty right of contract at least included the freedom not to contract with some one not of one's own choosing. But never mind.

So, we come at last to last weeks oral argument on the Texas (yet again Texas) abortion law. Justice Sotomayor worried aloud and darkly about the Court's loosing credibility. The New York Slime, sagely and sternly repeated her warning. Fear not, good people; the Court has already lost all credibility. It only retained credibility among gentrified liberals who applauded Roe, Obergefell and Obambi-care. It certainly did not retain any credibility among those who didn't. And, if you don't retain credibility along at least most of the spectrum you don't have the kind credibility the Court needs to sustain itself as an institution.

In a highly regulated, technological mass consumer society, it is very difficult for the Court to avoid decisions that will have immediate and broad consequences and which therefore will appear to be and come close to being “political.” But, if anything, this reality makes it more necessary than ever for the Court to appear to be and in fact to strive to be detatched from making expedient policy decisions.

I have no doubt that Scalia was a neo-liberal apologist who thought fags were abominable and who would allow abortion only prior to conception. But his point of fighting for what you believe in the political arena is something that leftists and progressives should have taken to heart way before last week. The whole idea that the judiciary could be used an expedient “tool of social reform” without hard work in the political trenches was misbegotten from the outset. Had leftists and progressives put their hearts and minds to winning battles in the streets we might today be at the point where we need to be: scrapping the invidious oligarchical canard that is our “republican system of government” in favour of a real, popular democracy.


©wcg, 2021