Last week’s hearings on the nomination of Samuel Alito to the U.S. Supreme Court raised many interesting issues, but none more important to certain groups than whether or not his confirmation would tilt the Court towards overturning Roe v. Wade.
There was much questioning of the good judge as to whether or not he believes that Roe constitutes a super-duper legal precedent and therefore “settled law.” This gives rise to the belief that even some of the most hardened liberals actually realize that Roe was badly decided and rests on shaky constitutional ground.
Since 1965’s Griswold v. Connecticut — where seven activist justices initially divined a right to privacy in the penumbras emanating from the Ninth and Fourteenth Amendments to the U.S. Constitution to strike down a law against contraception — the Supreme Court has clearly overstepped the constitutional boundaries assigned to it by the Founding Fathers.
The minority in Griswold properly held that the courts should not impose their own moral judgments over those of the people’s elected representatives, as Justice Hugo Black pointed out:
[T]his Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational.
And although he called the Connecticut law banning contraceptives an “uncommonly silly one,” Justice Potter Stewart added:
[W]e are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that, I cannot do.
That Judge Alito seems positioned to join others on the Court who agree with Potter and Black is rightly disconcerting to those who support a federal right to abortion. They know that if the issue were returned to the states for debate there is a likelihood that the practice would be considerably curtailed in many places, as it was prior to Roe.
Still, that hasn’t stopped liberal contention that Alito’s opinions do not comport with the views of “modern” Americans. Newsweek‘s Eleanor Clift quotes an un-named, pro-choice Republican: “Even if there’s no right to privacy in the Constitution, there ought to be. It’s an American virtue.” Here, Ms. Clift and friends are in severe need of a dose of “Constitution 101” as so beautifully administered by Justices Stewart and Black.
Ms. Clift also posits the peculiar notion that the GOP doesn’t really want Roe overturned because the party is full of “secret pro-choicers.” Her mysterious Republican source adds, “If Roe were overturned, we’d be electing Democrats as far as the eye can see.”
Right. So the movement that resulted in the re-election of a pro-life president, a pro-life majority in the House and Senate, and the removal of a judicial nominee whose pro-life bona fides were questionable is in danger of attack from within? This kind of wishful projection is what will keep the Democrats in the minority for some time to come.
Though there are those in the GOP for whom abortion is a key issue, it is the opposition that has made Roe its raison d’etre. When conservatives list their priorities, the reshaping of the courts is indeed near the top, but mainly toward a restoration of the constitutional balance of powers, the blurring of which impacts not only abortion but a plethora of issues, not the least of which is the size and scope of government itself.
Conservative reaction to Roe, Griswold, and cases involving eminent domain, racial quotas, capital punishment, school choice and religious freedom speaks to a distaste of the Court’s dangerous predilection for legislation rather than adjudication. In other words, Roe v. Wade is only one of the symptoms, not the root cause, of this concern. Forty years ago, Justice Black showed remarkable foresight in this area:
The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country.
When and if Roe is relegated to the ash-heap of history, the loudest cheers may come from right-to-lifers, but the sustained applause will be from lovers of the U.S. Constitution.