As most sentient beings will know by now, the US Supreme Court has overturned Roe v Wade in the Dobbs case. The general impression more than a few journalists and outlets are giving about this has been misleading, overtly politically partisan, and often wrong.
Let’s start at the beginning.
Roe v Wade was one of the worst constitutional law decisions going. And I’m not talking about its substantive outcome – that depends on your political and moral druthers. No, I mean the reasoning employed and the approach to constitutional interpretation is completely implausible and disconnected from anything other than the judge’s own political preferences.
Don’t take that from me. In 1973, when Roe was decided, 85 per cent of US constitutional law professors said as much in a survey. Even back then, law professors leaned left to a big extent (though today we conservative constitutional law professors are effectively an endangered species, choosing not to travel on the same plane together as that would be too dangerous).
One of the dissenting justices in Roe, Mr Justice White, at the time described the majority decision as ‘an exercise in raw judicial power’. That’s an apt description in my view.
Meanwhile, a 30-year-old, just-entering-the-Senate Democrat (a practising Catholic we were told) from the small state of Delaware attacked the Roe decision in its aftermath. It went ‘too far’ he said. He continued his critical viewpoint for a good many years – he probably doesn’t remember any of this today, though he’s now the US President.
So did many, many other Democrat politicians until the case became a sort of evangelical shibboleth, or test of one’s virtue, for near on anyone on the left side of politics in America. Then, poof! It became illegitimate to criticise Roe. Okay, that’s an overstatement because just before she died the Supreme Court justice deified by the left, Ruth Bader Ginsburg, said Roe was bad law.
Here is an observation I’d make about all the wealthy common law jurisdictions in the anglosphere. It’s a generalisation you understand…
Judges on the political left are noticeably more inclined to play fast and loose with precedent while those on the right are not. This means there’s a ratchet-up effect in play. Over time, the forces of progressivism (for lack of a better word) overturn past precedents they don’t like, but conservative justices very rarely do.
I’ve never agreed with that position by most conservative top judges. When it comes to constitutional law, as opposed to statutory interpretation or common law calls, the interpreter’s fealty or loyalty is to the Constitution itself, not to what some past judges said about it. The founders and ratifiers were those who were given the legitimate authority to make this founding law and it is their views that matter. With a statute, if the legislators think the judges got it wrong they can pass a new statute to correct them. With constitutional calls that is, in practice, off the table. A judge’s perspective cannot be confined just to the two parties before the court.
All of us, all citizens, have an interest in what is decided. Overturning wrong constitutional precedent is not just an option, in all but ‘this will cause chaos’ instances it is a judge’s obligation.
And so we turn to the overturning case of Dobbs, which has just been released (though leaked a few weeks ago). It showed real guts and bravery for the five judges in the majority to do this when many on the left were attacking the court in a way unheard of in Australia and which went so far that there was a foiled assassination attempt on one of those in the majority. The main opinion by Justice Alito is very good. But the one by Clarence Thomas is superb. He calls into question all the judicially made-up bumf of the recent past, including the so-called ‘substantive due process’ doctrine. (And this does look wholly made-up to me.)
Also, remember what the Dobbs case is doing, because this has been massively downplayed by ‘our’ ABC and by most of the legacy broadcasters. In no way at all is it outlawing abortions. It is simply saying that the Constitution leaves that call wholly with the elected legislature of each US State – the way it’s been decided in Australia, Britain, New Zealand, Singapore, Jamaica, and the list goes on.
If you don’t like that outcome, if you want unelected judges to make the main social policy calls for you (perhaps because the median lawyer today sits significantly to the political left of the median voter, and it’s from the lawyerly caste that judges are selected, so you think you’ll get more wins from them than from the legislature) then stop pretending to be a Democrat. You’re not. You’re an old-fashioned aristocrat with judges substituting in for the landowning gentry. And that critique applies to the virtue-signalling idiocies we’re hearing from world leaders such as Justin Trudeau, Emmanuel Macron, and Boris Johnson.
If they’re going to comment on US politics, and pretend that the Dobbs decision is ending abortion in the US, they should be ridiculed by Republicans. Heck, France has abortion laws that until recently were more restrictive than Mississippi’s. And President Macron was against liberalising them. If you were cynical you’d think he was a hypocrite – so I guess I’m cynical.
This next point is crucial. To get to this excellent result – because for me any time decisions get removed from the clutches of over-powerful judges and returned to the voter, that is an excellent outcome – two big things had to happen.
First off, Justice Ginsburg had to refuse to step down when President Obama more or less made clear that he thought she should so that he could appoint her successor. But Ginsburg was confident Hillary would win and liked the idea of a woman picking her replacement. Ouch!
More importantly, this could never have happened without one Donald Trump. It was Trump who finally alighted on the only way it seems that conservatives can choose interpretively conservative judges – set out a list of a few dozen plausible possibilities and then take on board the comments that come back on whether these people really are interpretively conservative. (Spoiler alert: Most are not. Just look at the picks of the last nine years of Coalition High Court appointments, which were woeful save for one, maybe two exceptions, or look at nearly all the Stephen Harper picks in Canada.) But add to that Trump’s willingness to fight and to stand up against the concerted campaigns to derail conservative appointments.
When Justice Kavanaugh was nominated and ridiculously implausible allegations of sexual impropriety were made against him from decades and decades ago with not a shred of supporting evidence, Trump stood firm and got Kavanaugh appointed. I don’t think any other Republican would have stood firm (though maybe DeSantis would today). I can’t think of any Liberal politicians in Australia who would have either. Think about Scott Morrison. He ignored the presumption of innocence when it came to Ms. Holgate, the SAS indictee, Christian Porter in his own Cabinet, and even made an apology in a case before the courts (which he sort of walked back when his idiocy was made plain).
Trump also opted to nominate Amy Barrett after Ginsburg died, and not all that far from the coming 2020 election. Everyone on earth knows the Democrats, had the positions been reversed, would have done the same. Yet the number of right-of-centre politicians who would have acted that way, the way Trump did, you could count with the thumbs of one hand.
Here’s my bet. Given that the New York Times a fortnight ago or so predicted that post-Dobbs the number of abortions in the US would be about 90 per cent of what they are now – because California, New York, Oregon, et al won’t be legislating to stop abortions – I don’t think the outrage the Democrats are trying to foment is going to help them in the midterms later this year. I foresee big Republican gains.
More importantly, this was a rare case of judges recanting on one of their own made-up doctrines that, mirabile dictu, happened to increase the power of those very same judges. The lawyerly caste, as a rule, hates that. I love it. Now I only wish that we had enough appointees to our High Court to overturn the wholly implausible ‘implied freedom’ jurisprudence. It’s not quite as pathetically implausibly reasoned as Roe. But it’s close. Let’s find some Aussie Alitos and Thomases and get it done.
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