The American legal system has no ability to enforce it’s own law, no real inherent claim to it’s own legitimacy. It has power because we respect it’s legitimacy and the rest of our government abides by their rulings. If we get down to it, rule of law exists because we have precedent, so we accept there is a framework beyond base opinions of nine people on the high court giving us edicts based on their own opinions. Once you remove that framework, you simply have tyranny by any five people on the bench. It doesn’t matter if they are liberal or conservative, the other half of America is going to struggle to accept that.
In the past 24 hours the Supreme Court has overruled precedent twice to rule that the states are incapable of regulating conceal carry gun laws but they are capable of regulating the right of women to abortions. In both cases they have abandoned precedent, but for entirely different rationalizations. It makes no common sense. They are arbitrary. The court has done great harm to itself as an institution. It has harmed respect for our law.
In the President’s remarks today, he noted that there is no executive action that can undo this ruling. He is right. Presidents have no special powers to make laws, only the act of enforcement is within their power. You do not want to live in a country where Presidents decide law by fiat and pick and choose what to enforce. President Biden was right to say today that Congress should pass a law to codify Roe. I think we all know that the current Congress cannot, it is far too closely divided and one of it’s two parties will vote nearly unanimously against it. This leads to the third, and most correct thing the President said- the most powerful response to this action is to vote. You get the government you vote for. You had five judges, all appointed by Republicans and almost entirely confirmed by Republicans, who took today’s action. If you elect Republicans, or just don’t show up to vote against them, this is what you will get. You can certainly say Democrats are not perfect on the issue, or that you don’t like that they have a few pro-life members in Congress, but here’s reality- all three Democratic appointed judges dissented with today’s opinion, and there would be no less than two more judges there agreeing with them had Hillary Clinton defeated Donald Trump in 2016. Democrats have been losing elections in America for most of my lifetime. That’s how we got here.
None of this process talk does the issue justice though. For the last 50 years women had a constitutional right, and today that was taken away from them. The state has no fundamental reason to regulate reproductive rights of women other than a political preference for control. The autonomy to make their own reproductive decisions has improved health outcomes for women and allowed women to leave their homes for the workplace. The right to make their own decisions on pregnancy and contraception has allowed women to make great advancements in our society. Yes, there are tens of millions of pro-life women that live pro-life lifestyles in this country, but the point is that they get to decide so, not the government. It is impossible to gauge the 50 year impact today’s decision will have with precision, however it is very easy to listen to those impacted by this decision today and gauge the impact on them. For poor women in conservative states, their autonomy is simply gone today. Even for some affluent women, their real world ability to make their own decisions has virtually vanished. Those directly impacted don’t need to wait and see about this ruling. They know today.
If you think this is the end of this court’s rights grab, you’re sorely mistaken. Judge Alito attempted to do intellectual gymnastics in saying his ruling was limited just to Roe and not other rights covered under the right to privacy. Judge Thomas didn’t even attempt this, instead writing in his concurrence that the court should now look at contraception, gay marriage, and other areas of law that fall under the right to privacy. Any halfway intelligent person can realize that if Alito says Roe was wrong because it was not a clearly enumerated write in the 14th Amendment, he and his four colleagues can’t argue differently about interracial marriage, same sex marriage, contraception, or really any other personal right previously protected under this rationale. In short, we’re now on a slide to a pre-1960’s America where the state can and will make moral decisions for the individual.
The court not only delegitimized itself today, it harmed half it’s own population. Three judges appointed by a President unpopularly elected and four judges appointed by one term Presidents took a right away from a majority of the population. Five judges decided to throw precedent out the door multiple times this term. The stability of our law has been removed by five activist judges. Yet all we can do under our system is vote out as many elected officials who agree with these five justices as possible. Yelling louder doesn’t fix it. Our options are limited.
It’s a sad day in America.