The abortion question will not be decided on theological grounds. Nor has it ever been adjudicated by any appellate court in the U.S. purely on theological grounds.
It is part of our political theatre of the absurd for abortion rights activists to be arguing at this remove that stare decisis, which obliges judges to stand by precedent, prevents the Court from revisiting two decisions that for nearly a half century have dumped political protestors, pro and contra, at the doors of the U.S. Supreme Court.
The protestors are agitating politically precisely because by withdrawing the issue from state legislators and plopping it into the dark robes of the judicial department, the court itself has been forced to own what is essentially an issue that, from the very first, should have been decided by legislatures, not courts.
The abortion issue, in other words, should have been decided in the court of public opinion by state legislators accountable to the people – not in law courts. For the past half century, the High Court has been reaping the bitter political harvest it has sown.
One senses a large load of quiet desperation in Supreme Court Justice Brett Kavanaugh’s query: “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this? And there will be different answers in Mississippi and New York, different answers in Alabama than California.”
To put the question in terms those of us in Connecticut may best appreciate: Why shouldn’t the matter now before the High Court be decided by legislators in Connecticut’s General Assembly rather than Justice Kavanaugh?
During the raucous nomination processes of what the Associated Press never fails to style the “Trump conservative court justices,” Connecticut U.S. Senator Dick Blumenthal, whom Planned Parenthood has on a short campaign contribution leash, directed his feverish opposition at conservative justices – some of whom are, gasp, Catholic .
Some fierce opponents of “conservatives” on the Court have subtly intimated that Catholics could not fairly decide abortion issues without tumbling over church doctrine and Papist Big Shoes. Arthur Schlesinger Jr. was not the first prominent American historian to point out that anti-Catholicism, operating shamelessly just below the surface of politics, was the oldest prejudice in the United States.
Kavanaugh’s barely whispered query has nothing to do with his Catholicism and everything to do with a constitutional structure that prevents court justices from assuming the decision making powers the U.S. Constitution vests in representative legislative assemblies. Indeed the term “conservative” as applied to justices rather than legislators is highly prejudicial.
Real juridical differences outside the High Court revolve around the doctrine of originalism, which holds that the meaning of disputed constitutional terms is to be determined within the context of the times in which the terms had been promulgated.
The U.S. Constitution, the touchstone of High Court interpretation is, after all, a text. And just as the meaning of a word is to be defined by its context in a sentence, so the meaning of a constitutional provision is properly determined by its historical context. It was Associate Justice Ruth Bader Ginsburg, who politely disagreed with Associate Justice Antonin Scalia on most matters other than Opera, who said “We are all originalists now.”
Originalism is a bar to what one might call the kind of free-association Constitutional interpretation favored by politicians who want the justices to insert a fanciful, ahistorical textual meaning into juridical interpretation – so that timid legislators will not be put to the inconvenience of writing laws to which the legislators may be held accountable by voters at the polls.
Conservatives, and even more so libertarians, favor originalist interpretation of constitutional texts for the same reason they favor a rather stubborn adherence to Constitutional prescriptions, one of which holds that legislators such as Blumenthal should make laws, chief executives should enforce them, and Supreme Court Justices should assure that laws passed by Blumenthal pass Constitutional muster.
The increasingly absurd political quarrels over abortion are only in part about which special interest legislators must stroke to win elections. They are quarrels not only about what should be done, but in addition are Constitutional -- i.e. fundamental – quarrels over who should decide what is to be done. Kavanaugh’s answer to the second consideration appears to be: Political matters should be decided in the court of public opinion by legislators, not judges, whose ethical and constitutional mission is entirely different from that of a legislator.
Blumenthal, a Constitutional escape artist, wants Kavanagh and other Justices who are not subject to the vox populi, to do his job for him.