The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean but what it meant when it was adopted.
Justice Antonin Scalia
Last week a copy of a DRAFT majority opinion overturning the 1973 abortion rights case of Roe v Wade found its way into the hands of Politico and onto to the front pages of almost every newspaper and social media site in the land. The leak was an appalling act that struck at the heart of our democratic republic when faith in government is already at a low point.
The case, Dobbs v. Jackson Women’s Health Organization, has to do with a Mississippi law called the “Gestational Age Act,” which prohibits all abortions, with few exceptions, after 15 weeks’ gestational age. It’s one in a long line of efforts by conservatives challenging the 1973 Roe decision that made abortion a right covered by the U.S. Constitution.
What does a case on abortion have to do with U.S. climate policy? Factually, not much. But the willingness of a majority of the U.S. Supreme Court (SCOTUS) to overthrow established precedence in one fell-swoop may mean that Massachusetts v EPA – the bedrock on which federal regulation of carbon and other harmful greenhouse gases is based – is in judicial jeopardy. More on that in a moment.
All I know is it appears that someone was lying.
In August 2018, the New York Times reported that [E]merging from a more than two-hour courtesy visit with Judge Kavanaugh, Senator Susan Collins of Maine said they had discussed abortion cases at length, and how he might rule as a Supreme Court justice. Collins said he told her he agreed with Chief Justice John G. Roberts’ position on the matter. The Chief Justice told senators that he regarded Roe as settled law during his own confirmation hearings in 2005.
Justice Kavanaugh’s assurance played a significant part in Senator Collins’ willingness to vote in favor of his nomination to the highest court in the land. Kavanaugh was not the only justice nominated and confirmed during the Trump regime who gave similar assurances.
Justice Amy Coney Barrett, responding to Senator Dianne Feinstein’s (D-CA) question about her position on abortion, said: Senator, what I will commit is that I will obey all the rules of stare decisis.
Freely translated, the phrase means what came before and accords great weight to judicial precedence. Often, the older the precedent, the more ingrained it is in other cases, including having survived direct challenges.
Then there were three. Although refusing to state a firm position on Roe, Justice Gorsuch stated during his nomination hearings that the case was an affirmed precedent of the United States Supreme Court.
Unsurprisingly Senator Collins feels betrayed by the three Trump-nominated justices. Collins told The New Yorker: When I met with Justice Kavanaugh…he looked me in the eye and said that he considered Roe v. Wade the law of the land. Nothing in his confirmation hearings suggested that he would ever be less than trustworthy with a woman. The Senator had similar experiences with Gorsuch and Coney Barrett.
The role of precedence in U.S. law
I’ve written before that the stare decisis doctrine is firmly embedded in American jurisprudence. However, the principle is neither flawless nor immutable.
There are times when a court will decide the precedential basis of prior decisions is unworkable, e.g., advancements in knowledge or so unjust as to warrant being abruptly overturned. In a 2018 address at the University of Minnesota Law School, Chief Justice Roberts referred to the internment of Japanese Americans in World War II (Korematsu v U.S.) as an example of a court decision so egregious as to require immediate reversal—and, by turn, cases based on it.
Neither of the Trump nominated justices gave Senator Collins their word they wouldn’t overturn Roe. Doing so would itself be counted as yielding to political pressure. However, it was reasonably understood that they would be unlikely to overturn it in a single stroke and implied the same would be true for other cases, e.g., environmental regulation.
The possible repercussions of the Dobbs decision on U.S. climate policy
The climate community is asking itself in the wake of the leaked draft majority opinion in Dobbs whether the same six justices will abruptly abandon the decision in Massachusetts v EPA. There’s an urgency to the question.
SCOTUS has already heard oral arguments in West Virginia v EPA. The case challenges EPA’s authority to regulate greenhouse gases emitted from the tailpipes of automobiles or beyond the fence lines of coal-powered electric plants.
Earthjustice Senior Vice President of Programs Sam Sankar warns the Supreme Court is on the precipice of limiting EPA’s ability to combat climate change and protect public health. Others believe the circumstances of the cases are different enough that a U-Turn back to the 1970s won’t be warranted. It is not to say that it won’t be whittled on a bit.
How high the precipice and long the fall depends upon the wording of final opinions in both Roe and West Virginia. Although Roberts confirmed the leaked draft was legitimate, he didn’t indicate how it might compare with the final printed opinion. It’s not unusual for a justice to lobby other justices for a particular outcome in a case using draft opinions as starting points for discussion.
If things hold as they now appear to stand, Justices Thomas, Gorsuch, Kavanaugh, and Barrett will join Alito in overturning Roe. In opposition to the five conservatives will be the three liberal justices, Breyer, Sotomayor, and Kagan.
Where Chief Justice Roberts will come down on the Dobbs case is still unclear. Roberts may be a dissenting voice—for which he’ll be vilified by Republicans. His opposition is likely to be based on concerns that such sudden reversals weakens the institutional integrity of the Court.
Roberts admitted in his University of Minnesota address that the Court has from time to time erred and erred greatly, as in the internment case. Why the Court has erred in those few cases concerns the Chief Justice.
According to Roberts, when it has erred, it has been because the Court yielded to political pressure. By design, the judicial branch of government is to be above politics—at least as above as possible in a system where politicians do the nominating and confirming of judges.
Let me be clear. I’m not accusing the conservative justices of being influenced by politics, nor am I calling the Trump nominees liars for what they said or didn’t say to Senators in advance of their confirmation. My concern is the same as Chief Justice Roberts’. It applies across the judicial board—liberal to conservative.
The leaked draft opinion guarantees the Dobbs decision will forever be thought of as politically motivated--whether true or not. Moreover, it will taint future decisions of the Roberts’ court and be used by the Democrats to propose expanding the high court from nine to 13 justices.
Packing the Court is not going to solve the problem. It’s a distraction that glosses over the real issue—the hyper-partisan state of the nation. It’s a condition that puts tribe above country. Worse, it makes every decision by lawmakers a test of their tribal loyalty. For Republicans, it means fealty to Donald Trump and the Big Lie.
Democracy is delicate
We, the People, sometimes forget that we’re all in this together and why the U.S. is the longest-running democracy—technically a democratic republic. Democracy works because We, the People, have faith enough in each other, in the overall fairness of the system, and in the collective wisdom of our elected representatives that we’re willing to be part of the polity.
Over these past months and years, the nation has faced challenges of biblical description—plagues, floods, droughts, wars, and economic turmoil—that would have made Job cry out. And how have We, the People, responded?
Why, in a dangerously anarchic manner—with people and political leaders choosing which laws of science and society they are willing to believe and follow not based on fact but personal fancy. Whether Republican or Democrat, water still won’t flow uphill. The last presidential election wasn’t stolen based on the evidence presented—so say more than 60 courts of law presided over by judges appointed by Republican and Democratic presidents.
The unusually large number of retiring members of Congress is partially the result of the gridlock that has characterized the federal government for most of the past quarter-century. Should the Republicans take the House and or the Senate—as predicted—the gridlock and partisanship on Capitol Hill will only get worse.
The story goes that Benjamin Franklin was approached by a group of citizens asking what sort of government the delegates to the Constitutional Convention had crafted. His answer: A republic-- if you can keep it.
Can we, will we? Well, those are topics for another day.
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