The legitimacy of the United States Supreme Court may be deteriorating, whether because so many decisions are badly decided or because too many of them are so out of general public sentiment. Leaking of Justice Alito’s draft decision to override Roe v. Wade is just a fru-fru that doesn’t amount to much even if Sen. Cruz of Texas says he is sure, without evidence, that a Liberal had disclosed it, and that the perpetrator should be prosecuted to the full extent of the law, though it is not clear that this is even a minor legal infraction. After all, this is not a national security matter, just a custom of privacy before everyone has had a chance to edit a decision. Moreover, it is the Conservative Supreme Court watchers who are the ones casting aspersions to the legitimacy of the Court in that they are the ones who seem to find every recent major decision since Brown v. Board of Education to have been flawed and requires being overturned. What validity should Supreme Courts hold if they get everything wrong? Indeed, most major decisions rest on flimsy grounds. Griswald discovered the penumbra of the Constitutional right to privacy and Roe invented legislative like stipulations about when the Court could allow when the government could intervene in privacy (the last trimester), something subject to change every few years when there are advances in neonatal care that move fetal viability to ever shorter terms in their pregnancies. It is a very different way to make decisions from on high as when the Vatican insists it never makes mistakes or apologizes for few papal decisions or even administrative matters where they have erred. If errors are frequent, then how is the Catholic Church to be infallible? If the Supreme Court is regularly erroneous, how are we to think that the Court is wise and thoughtful?
Think how differently was appreciated the Supreme Court decision about ordering the desegregation of schools in 1954. The current President, Dwight David Eisenhower, was not at all convinced of the wisdom of Brown v. Board. He privately mused that he did not want to see some big black buck sitting next to some little white girl in a classroom. But he thought that it was necessary to enforce that decision so as to honor the prerogatives of the Supreme Court and so sent the National Guard to enforce compliance at Little Rock High School. The current incumbent, Joe Biden, on the other hnd, will use whatever the executive branch has to work around the decision and regards the Alito draft as a terrible decision that opens up no end of mischief to any number of rights presently protected by court decisions, including same sex marriags or miscegenation. The current President upholds the Supreme Court only when he likes a decision. That is quite a departure from Ike. Remember, the Supreme Court has no enforcement power. It can’t mobilize the National Guard to close or defend abortion clinics, bit Biden can.
Conservatives like to think that social problems are resolved by letting states rather than the federal government decide matters because state governments are closer to the people and will therefore follow the interests of their populations. Actually ,people don’t know who their state officials are better than a state's Senators and Representatives in Congress and certainly with a President. What they do know is that they have shared points of view within their regions, not within their states. Southerners were more resistant to desegregation than were Pacific and New England states, with the notable exception of Boston. But certainly allowing even regions to go their own way on important cultural issues will increase rather than reduce strife. The Compromise of 1859 allowed Southern states to remain slave states but that meant also the enforcement of fugitive slave laws that made it difficult if required to turn slaves back to their owners. It did not allow for a long lasting peace, the Civil War starting a decade later. Allowing state rights for abortion is going to run into problems, such as jailing people who leave the state to have an abortion or being tried for importing abortion pills across state lines. Where feelings go so deep, a state line is not much of a divide. There have to be general and therefore federal rules and there are ways to do so if we consider carefully what rights are allowed under the Constitution.
Whether there is a new right to abortion, one only fifty years old, requires applying the oft forgotten Ninth Amendment which holds that there are rights that are not enumerated by the Constitution. The question is how to decide whether any of those potential rights, such as a right to eat gummy bears, is to be included under the Ninth Amendment. Maybe gummy bears are a personal indulgence, a particular taste, and so not to be subsidized by the Federal government. But insulin and, in general, health care, have become recognized as rights even though they were not considered at the time of the Constitution but have evolved as a doctrine in the last fifty years, there being legislation to support it, and hospitals for a long time have a fund to pay for patients who re not able to pay their own fees. Unlike gummy bears, health is required for people to carry out their citizen’s rights in that death alienates the body from the spirit and so life can no longer continue. That is a compelling reason to make abortion different from gummy bears.
Justice Alito said abortion was not one of those rights and supported this point by referring to all the state statutes throughout the nineteenth century that did not permit abortions. But that is to miss the point in that the idea is that abortion as a right has arisen over the past fifty or sixty years. It is possible for something that hadn’t been recognized as a right becomes so-- unless, as Alito thinks, there are no unenumerated rights. Alito did not consult recent statutes. But why consult only statutes? That is not the only way to show a right has been established, even though Justice Scalia had just investigated legal statutes, mostly in England, to show that there was a right to bear arms. But a right is an idea and so a scholar might consider the history or the substance of ideas to determine whether the putative right had become sufficiently recognized as a plausible or worthy right. History might cite the various writers about abortion that argued it was a bedrock for women being free in that women could not control their lives, whether in work or in family, if they could not decide whether to have an abortion. That shows a social movement had established itself and made some sense and become entrenched in legislation and statute afterwards, and so was not a trivial matter. And there could be a consultation of the ideas associated between abortion and freedom. And so it makes sense to think of “the penumbra” of the Constitution which came to include privacy as intellectually connected to the idea of having privacy in the home you own. Privacy goes along with using your furniture or cooking pots.
Similarly the idea of abortion is tied to the equality of womenhood whereby, as Feminists have argued, are not to be defined by their biologys but are independent of their biologys, just as is the case when women having smaller shoulder strength does not prevent them from being air force pilots or policemen. They have other skills and that biological skill is not paramount. You need judgment rather than strength for a cop to pull a trigger. But lawyers are knowledgeable about laws rather than about intellectual history or the parsing of ideas for their own sake and so just use what they know, like the carpenter who always uses a hammer because that is what he knows how to do. It would be necessary for Justices to learn new skills or someway use expert opinion of historians and philosophers to take on the work of establishing whether a particular right has emerged out of the evolution of a culture. Moreover, Conservative jurists are prejudiced against uncovering new rights because of their own philosophical perspectives and just the general sense that nothing new is good. There is a postal service only because Ben Franklin had one. Social Security is still too new. Catholic jurists are likely to find abortion anathma, find it so heinous a practice, so as to document the statutes that find it an abomination rather than consider why an idea that has become persuasive has become more than that, become incumbent upon a sense of a fully or more fully recognized citizen.
The Anglo-American judicial and political systems prefer to see decisions made by legislatures rather than judges. A good recent example of that is Brexit, where a referendum narrowly passed and where supporters to separate Great Britain from the European Union had a lot of second guessing whether some of the voters really meant it. How was that to be resolved? Several Prime Ministers found it impossible to resolve and get passed an enabling resolution. What happened was that Boris Johnson was able to manage that and so everything has settled down, some people still concerned that the Brits are getting a raw deal from the separation, but it could have been worse. Britain remains in trade relations with the continent, London remains the financial capital of the continent and Scotland has not opted to get out of Great Britain and join the European Union. All things considered, a good political solution to an injudicious decision. The Brits did not have to abandon constitutional legitimacy by calling for a do-over for a referendum. An election counts even if it might be unwise in its outcome.
The same is true in the United States. The Supreme Court was in a difficult bind in the early Fifties. It was clear that numerous decisions were percolating up to the Supreme Court having to do with allowing for the continuation of segregated public schools or rescinding that. The Congress was not willing to do anything to resolve the issue, the Southern Democrats and the Northern Democrats diametrically opposed to one another. So the Supreme Court was put in a pickle, having to make some kind of decision and deciding that desegregation was the only way forward but making sure to arrange for a unanimous decision so as to further the legitimacy of its decision. This too was a minority decision, as is Alito’s, but that was endorsed a decade later by the Voting Rights Act and the Equal Accommodations Act, and so ending Jim Crow and not just settling the peculiar situation of schools. That had become a right guaranteed by legislation rather than legal writ. That leaves to more political stability, an argument spported by many feminists who argue that abortion rights should have continued to be granted one state legislature at a time, as was happening in the Sixties, where New York State Catholic legislators agonized about what was the right thing to do, rather than be settled but not really with a single judicial mandate.
Making people decide who to vote for can be very liberating in that people are forced to take sides which means add up all the apples and oranges in a basket into a single vote, yea or nay, for a candidate. Queasy evangelical pastors, long opposed to abortion, may wonder about the extreme decision of Alito not making exceptions for rape and incest and just wanting to prevent abortion during the third trimester .But they will have to vote for or against candidates supporting or opposing what Alito had wrought. Like the Brexiters, they may get cold feet and no longer want what they had said they wanted. Waging an election campaign can be an enlightening discussion and makes the citizenry more informed even if the eventual decisions in the midterms may not be wise, but that is democracy, ever an experiment, ever perilous, only sometimes enlightened.