By Chris Wright, 6/27/22
Where is the Supreme Court’s apology? Look at what their Roe v. Wade decision of 1973 put the country through. Over the weekend, violence or disturbances broke out in several cities in response to the Dobbs decision reversing Roe, including Los Angeles, Oregon, Colorado, and Arizona. Prior to that, there were 27 attacks on pro-life pregnancy centers – including firebombings – and the FBI has not made a single arrest. There was an assassination attempt and threats of violence against the lives of Supreme Court Justices in the run-up to the Court’s new decision. People are resorting to violence because the Supreme Court created a federal constitutional right to abortion out of thin air in Roe in an opinion widely criticized for its incoherence and lack of constitutional moorings, and people are upset the Court is taking their candy away.
The recent violence is not even the half of it, and none of it needed to happen. For the last 50 years – my entire adult lifetime – there has been other violence, on the part of those who killed abortionists and attacked their clinics. Kidnapping, arson, and even anthrax threats characterized the era. Free speech rights were trampled as localities moved to squash peaceful demonstrations and even prayer outside abortion clinics. The debate on abortion in the country became polarized and bitter because abortion was federalized, instead of leaving this divisive social question to the states as the new ruling finally does. The Supreme Court did untold damage to federalism and upset the constitutional order by stripping states of the power to legislate on the issue and further concentrating power in Washington, D.C. where it doesn’t belong. Roe v. Wade helped the federal government become too darn big and powerful.
Justice Alito recognized this at the end of his opinion in Dobbs. Alito wrote:
The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
A dollar short and 50 years late. But you won’t find the words ‘apology’ or ‘we’re sorry’ anywhere in Alito’s opinion.
Roe was the Court’s first experiment in social engineering. It was followed by Lawrence v. Texas which created a federal right to sodomy out of thin air. Then Obergefell, which created a federal right to same-sex marriage out of thin air. Former Justice Anthony Kennedy wrote the majority opinion in both cases. Someone more clever than me put out a meme at the time, “Help, I’m being ruled by Anthony Kennedy!” It’s not supposed to be that way. We live in what is supposed to be a constitutional Republic where We the People are sovereign. It makes no sense to have important social issues decided by nine unelected Justices in Washington. It makes even less sense to have them decided by five of them in the majority, or by a single swing Justice like Anthony Kennedy, for the entire country.
More recently, Justice Neil Gorsuch picked up where Anthony Kennedy left off. In the 2020 Bostock case, Gorsuch put sexual orientation and transgenderism into Title VII where Congress had not, creating federal rights once again out of thin air. Like Roe, the opinion in that case is completely incoherent. Gorsuch was contemptuous of Congress in that case, saying Congress could have legislated against his result but failed to do so, leaving him perfectly free to rewrite the law as he saw fit. This budding social engineer left his training wheels behind that day. He adopted the language of the Left, talking about how ‘sex’ is merely assigned at birth. He was also naïve, believing the reach of Bostock could be limited to its facts in Title VII employment cases, but Bostock is now being read broadly and cited in all kinds of transgender cases.
The Supreme Court’s social engineering in Obergefell is following the unfortunate pattern of Roe – proving horribly divisive and leaving opponents nowhere to turn because the Court federalized the question. Just wait until the Left gets around to stripping churches that believe in traditional marriage of their tax exemptions. Bostock is a little different, because it involved statutory interpretation, not a constitutional question. Congress could change the result, but don’t hold your breath.
The Court waits in cases like this until public opinion tips in favor of making a change, but this is not a Quaker meeting house where the leader simply declares the ‘sense of the meeting’. It’s not the Court’s job to follow public opinion. It’s the Court’s job to interpret the Constitution regardless of public opinion. To applaud the Court for waiting for most people to become comfortable with the change completely misses the point.
To the Justices I say, get out of the social engineering business entirely. You are not smart enough to dictate social policy for the entire country. Nobody is. Social change is supposed to occur organically, through society at large. Not foisted on us by nine unelected Justices in Washington, D.C. As one wag put it, social change happens one funeral at a time.
The Dobbs decision is nice, but I’m waiting for the Supreme Court’s apology for Roe. But what I’d really like to have is some assurance the Supreme Court is out of the social engineering business, forever.
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