The court of last resort
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Dear editor:
Since the first week of May, when the political journalism company Politico chose to make public a leaked Supreme Court draft decision, Justices have been confronted by abortion rights protesters gathering at their homes as well as outside the US Supreme Court building. The draft decision indicates that the 1973 Supreme Court landmark decision Roe v Wade, in which the Court ruled that the Constitution protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction, will likely be overturned. Advanced publication of a draft opinion is virtually unprecedented.
Throughout the past 49 years, Roe has fueled ongoing debate about whether or to what extent abortion should be legal and who should decide the legality. The draft opinion puts decisions about abortion in the hands of the states instead of the federal government. Understandably, emotions are running high as the issue of abortion asks us to grapple with questions about the value and sanctity of life as well as the rights of the pregnant woman.
Some of the emotional reactivity relates to a lack of clear understanding of both the law and the outcomes. Citing recent polls, which asked about overturning Roe, 66% of the respondents were in opposition. Yet, two-thirds of those people believe that by overturning Roe, abortion immediately becomes illegal throughout the US. In actuality, the decision suggested in the preliminary draft returns choice to the people at the state level through voting.
In addition, nightly media news coverage of sit-ins staged at homes of Supreme Court justices and sound bites of antagonistic comments made by some government officials seem intentionally provocative when contrasted with a 1950 federal statute prohibiting protests, outside a courthouse or judge’s residence, that are “intended to influence in the discharge of his duty”. It may be debatable as to whether demonstrations are done to subvert the judicial process or simply as a means to express frustration. There is no doubt that the leak of the draft decision was done with intent to influence.
On one hand, the White House refuses to condemn the protests outside justices’ homes as former White House press secretary Jen Psaki publicly stated, “We believe in peaceful protests.” Vice President Kamala Harris was quoted as saying, “Republican legislators in states across the country are weaponizing the use of the law against women.” And in the most reported commentary, Senate Majority Leader Chuck Schumer, speaking at an abortion rights rally, assailed Justices Brett Kavanaugh and Neil Gorsuch, saying that “You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” To Schumer’s apparent license to rage, Chief Justice John Roberts rebuked him saying, “Threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”
There is no right to an abortion in the US Constitution. Whatever the Supreme Court formally decides as to a woman’s right to abortion, and however significant the effects of that outcome will likely be, equally compelling will be our dispatch of the draft leak as an assault on the Supreme Court.
As Americans, we must recognize the critical juncture at which we find ourselves. We exist at a place in society wherein we all must say: Stop! Something is wrong. We have arrived at a state of seeming turpitude caused by a lack of principle.
The Supreme Court is the highest tribunal in the nation, guardian and interpreter of the Constitution. Article VI establishes the Constitution as the supreme law of the land. An act of Congress that is contrary to the Constitution cannot stand. The inscription “Equal justice under the law” inscribed on the Supreme Court building means that all citizens are equal and protected by the rule of law. The Supreme Court has the authority to invalidate legislation which, in the Court’s considered judgement, conflicts with the Constitution.
The draft decision leak represents a degradation of a political institution from within, a grave assault on the Supreme Court. Justices are appointed and confirmed to hold office for life so as to protect their independence from political influence. They discuss issues without political pressure. Now, because of the leak, trust is gone and the institution has been forever changed. That breech of trust dismantles the confidentiality of the judicial process and is an affront to the Court.
Former Justice Louis Brandeis warned that “If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.” Now is the time to intervene in this apparent collapse of our values as a nation. Regardless of political party, we must see the humanity in one another.
Peter Wibell Rutledge