Sunday, September 9, 2018

#252 / Roe, Roe, Roe Your Boat

If there is any single Supreme Court decision that indicates how inadvisable it is for the Court to become the seat of political decision-making (the topic addressed in yesterday's blog posting), it must certainly be Roe v. Wade

When that case came to the Supreme Court, the Court was asked by "Roe" to declare unconstitutional a Texas law that denied her the right to an abortion. If you click the link and read the decision, you will find that the Court did something beyond finding unconstitutional the particular Texas statute that was challenged by "Roe." The Court, in other words, went beyond deciding the specific "case and controversy" brought before it, which is what Article III of the Constitution requires.

Instead of making a focused decision on the exact case before it, the Court extensively reviewed the history of abortion, and then said that some state laws forbidding abortion must be found to be unconstitutional, as an invasion of a woman's "privacy." 

The Court went on, having made this initial decision, to outline a fairly detailed scheme to evaluate the constitutionality of state laws. In other words, the Court attempted to balance the equities the way a state legislature might, and this is a task that is essentially "political," not judicial. 

We and the Supreme Court have gone "down the stream" ever since, though not very "gently" or "merrily," in my opinion. 

Disagreements can be dangerous, and the Constitution indicates that such disagreements should mostly find their resolution through legislative decisions, and not by decisions made in the courts. As long as we think that the Supreme Court is really the group that makes the final and most significant political decisions that impact our lives, we will continue to experience the kind of corrosive politics that undermines, in the end, the proper role of the judiciary in our Constitutional system of government.

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