The Supreme Court
has turned the Constitution into a Religious Text
During the famous Kennedy - Nixon
presidential campaign in 1960, one of the main arguments in favor of Nixon was
that Kennedy was a Catholic. It was received wisdom that, as a Catholic,
Kennedy would have to follow the church's teachings when they conflicted with
the law of the land. Starting with the nomination of Geraldine Ferraro for
Vice-president in 1984, Catholic politicians who support abortion rights have
been regularly castigated by clergy and threatened with being denied Communion.
In 2004, Cardinal Raymond Burke, the former St. Louis archbishop, said he
would not give Communion to Democratic presidential nominee John Kerry. In
2007, Bishop Thomas Tobin asked Congressman Patrick Kennedy, the son of Senator
Edward Kennedy, not to take Communion because of his support for abortion
rights. In 2008, Bishop Joseph Francis Martino of Biden’s hometown of Scranton,
Pennsylvania, said Biden would be denied Communion in the Scranton diocese over
his support for abortion rights.
Immediately
after Biden won the presidency, the US Conference of Bishops approved a
teaching document about the role of the Eucharist and Catholic politicians who
support abortion rights. It raised the possibility of denying Communion to
Biden, a regular church-goer and the second Catholic president.
As recently as April 7 of last year,
Speaker of the House Nancy Pelosi received a letter from Salvatore Cordileone,
the archbishop of the Diocese of San Franciso, saying she must either repudiate
her support of abortion rights or stop speaking publicly about her Catholic
faith, and that if she didn't, she would not be allowed to receive Communion.
One can
certainly accuse some members of the Catholic clergy of being against the separation
of church and state without being accused of religious bigotry. It is also
undeniable that the Catholic church does not believe in the equality of the
sexes, as it doesn't ordain women priests.
On September 12, 1960,
Kennedy spoke before the Greater Houston Ministerial Association about his
religion and the separation of church and state. He said, "I believe in an America where the
separation of church and state is absolute--where no Catholic prelate would
tell the president (should he be Catholic) how to act... But let me stress
again that these are my views--for contrary to common newspaper usage, I am not
the Catholic candidate for president. I am the Democratic Party's candidate for
president, who happens also to be a Catholic. I do not speak for my church on
public matters--and the church does not speak for me.
"Whatever issue may come before me as
president--on birth control, divorce, censorship, gambling, or any other
subject--I will make my decision in accordance with these views, in accordance
with what my conscience tells me to be the national interest, and without
regard to outside religious pressures or dictates. And no power or threat of
punishment could cause me to decide otherwise."
Kennedy won the
presidency by the narrowest of margins. But today, 63 years later, the fears of
electing a Catholic president have been realized in the Supreme Court's
withdrawal of a woman's right to an abortion.
Chief Justice John
Roberts attended La Lumiere, an elite private Catholic boarding school. Brett
Kavanaugh and Neil Gorsuch are graduates of Jesuit Georgetown Preparatory
School in Bethesda, Maryland. Georgetown Prep is all boys and costs $42,000 a
year for a day student, over $60,000 for a boarder. It is the only Jesuit
boarding school in the United States. (Jerome Powell, Chairman of the Federal
Reserve Board is also a Georgetown graduate.)
Clarence Thomas
attended St.
Pius X High School for two years before transferring to St. John Vianney's
Minor Seminary on the Isle of Hope. He also briefly
attended Conception Seminary College, a Catholic seminary
in Missouri.
Amy Coney
Barrett attended St. Mary's Dominican High School, an all-girls private
Catholic school. Sonia Sotomayor attended Cardinal Spellman High School in New
York. Four of these private Catholic high school graduates: Gorsuch, Kavanaugh,
Thomas, and Barrett, are four of the five votes the Court used to get rid of
the right to an abortion.
The fifth vote was from Samuel Alito, also a devout
Catholic. Alito, one of only two justices who went to a general admission high
school, joined an organization at Princeton that was opposed to allowing women
into the student body. That makes six of the nine justices who are graduates of
private Catholic high schools.
In 1973,
when Chief Justice John Roberts graduated from high school, there were 1
million Catholic high school students out of a total of 15 million, about 6%.
Today the percentage is 3%. So, to have a Supreme Court where 2/3rds attended
Catholic schools shows some kind of undemocratic bias in the selection of
Justices.
Anyone who thinks that overturning Roe was based on the law is living in a dream world, as is the
Supreme Court. The Court has been trying to take away the right of women to
control their own reproductive choices for years. To do so, they have had to
twist the law into religious doctrine.
The
Catholic Church is run entirely by men, most of whom have no children and are
voluntarily celibate. Their personal knowledge of and understanding of what it
takes to father and raise a child, not to mention bear one, is minimal and
purely theoretical.
The first sentence of the Dobbs decision overruling Roe
is "Abortion
presents a profound moral issue on which Americans hold sharply conflicting
views. Some believe fervently that a human person comes into being at
conception and that abortion ends an innocent life." The only problem is
that it's not a moral issue for the Court, it's a religious one.
The
Supreme Court is not opposed to killing. It supports the death penalty. So, the
issue is why the Court supports killing in death penalty cases but opposes it
in abortions, overlooking, for argument's sake, the obvious fact that most
people consider the fetus in the first trimester to be part of the mother and
not a human being at all. The Supreme Court is saying abortion ends an
innocent, as opposed to a guilty, life. Once it is born, according to Catholic
doctrine, it is tainted with original sin and needs to be baptized to protect
its immortal soul. The insertion of "innocent life" in the Dobbs decision shows the religious
intent of the Court to make Catholic doctrine the law of the land concerning
abortion. Innocent is a religious, not legal, argument in the absence of due
process. Why didn't the Court just say "Abortion ends a life", or
" a potential life." Innocent is an irrelevant, extraneous term.
Guilt or innocence is irrelevant. From the standpoint of abortion, either it's
a life or it isn't. Adding "innocent" shows the true religious intent
of the decision because it's meaningless. What would a guilty fetus be?
In the famous Burwell v. Hobby Lobby case in 2014, the
Court gave religious rights to a corporation while simultaneously taking a slap
at the Affordable Care Act. The ACA required profit-making corporations
(corporations are fictitious individuals created by the state) to offer birth
control to their employees in their health plans. In holding for Hobby Lobby, the
Supreme Court, gave religious rights to for-profit secular corporations. While
there is a religious exemption in the Affordable Care Act, the decision written
by Justice Alito, who also wrote the decision invalidating Roe, found that the Religious Freedom Restoration Act gave private,
profit-making corporations the right to impose their religious beliefs on their
employees.
The religiosity of the Court's Dobbs decision is most manifest in the case of rape. Rape is a
capital crime. Between 1930 and 1972, when the Supreme Court outlawed the death
penalty for non-murder crimes, 455 people were executed for rape in the United
States (89.1% were Black). The Dobbs
decision overruling Roe means that
states are free to deny women an abortion even when they have been raped. This
puts the Supreme Court on the side of the criminal and against the victim.
Anyone who thinks that life begins with rape has a completely biological idea
of what constitutes life and, ironically, no understanding of the love and
spirituality necessary to conceive and raise a child who will grow into a
healthy, moral adult. Richard Posner, a famous Federal Appeals Court Judge who
wrote 40 books, including The Economics
of Justice, considers a woman's egg to be her property which, in the case
of rape, is being stolen from her.
The truth is that Americans hold
conflicting views on who is a person whose life is protected by the
Constitution. The anti-abortionists hold that a fertilized zygote is a person,
I guess because that's when they think it acquires a soul. A soul is a
religious concept absent from the law. The pro-choice supporters think it is
the mother who is a person, and her right to live and control her life takes
precedence over theoretical possibilities.
Bringing a child to
term is hard, painful, and life-threatening work. Mothers must make many
personal sacrifices in order to bring a healthy child into the world. There is
no way to compel someone who is forced to have a child to eat the right foods
and stop drinking and doing drugs while pregnant. History has shown that when
third parties inject themselves into this most personal and emotional of all
decisions, whether it's euthanasia enthusiasts in the United States and Nazi
Germany in the 1930s or the now regretted one-child policy in Communist China,
disaster is sure to follow.
The Role of History in Supreme Court Decisions.
The
Court decided that the difference is whether the right to obtain an abortion is
"rooted in the Nation’s history and tradition and whether it is an
essential component of 'ordered liberty.'" The Court found that the right
to abortion is not deeply rooted in the Nation’s history and tradition because
3/4ths of the states considered it a crime in 1868 when the
Fourteenth Amendment was ratified.
While it
is true that 3/4ths of the states banned abortion, it is also true
that the majority of those states (23 out of 32 or 71.8%) included an exception
if the life of the mother was at risk. If the Dobbs majority had been intellectually honest as lawyers, its
decision would have had to include the right to an abortion when the life of
the mother is endangered by her pregnancy. It didn't follow its own logic
because it was loath to permit any kind of abortion to have Constitutional
sanction. Dobbs is a religious, not a
legal decision. States are now free to ban abortion at all stages of pregnancy.
Is there anyone who would be opposed
to abortion to save the life of the mother? You bet. My wife's grandmother, a
devout regular churchgoer, had four children. After the fourth, her doctor said
that if she had a fifth, she'd die. So she went to see her priest to ask his
advice. "So die," is what he said. Was it really moral to leave her
four children motherless to fulfill some philosophical idea of sin? Real life
is too complex to conform to any absolutist philosophical stricture.
Similarly,
my wife's cousin's rationale for why a woman should be forced to bear the child
of her rapist is,"it wasn't the fetus's fault."
The truth is that many men have no
understanding of pregnancy and childbirth. In contemporary America, the male
role is as sperm donors and breadwinners. Traditionally, women have gone off by
themselves to give birth.
In 1787,
when the Constitution was ratified, there were 4 million people living in the
United States, 900,000 of whom were slaves. Life expectancy was 38 years
because of the high mortality rate of children. Adults and children died all
the time. This is not exactly right. Once a person reached five years of age,
they could expect a more or less normal lifespan.
Yes,
abortion was illegal in 3/4ths of the states when the Fourteenth Amendment was
passed, making the Constitution binding on the states. What is wrong with the
Court's argument is they make it seem that abortion was illegal out of concern
for the life of the fetus.
In the
New Jersey Constitution of 1776, both women and free Blacks could vote as long
as they owned ₤50 of property and had been residents for 12 months. In
1807, a "reform" bill abolished the property requirement for white,
tax-paying men but took the vote away from Blacks and women. What was changing?
In 1803, Denmark was the first
nation to outlaw the international slave trade. Britain followed in 1807, and
the United States in 1808. At the same time, Eli Whitney's cotton gin which was
invented in 1797, turned the American South into King Cotton, which required
copious amounts of manual labor.
One
reason abortion was illegal was that the female offspring was property, the
property of the enslaver, or the property of the father or husband. The people
who wrote the Constitution, all men, some of whom were slave owners who
fathered children with their slaves, made sure the Constitution protected their
property rights. The idea that people who were willing to see their own
offspring endure a life of bondage would care about the unborn is too ludicrous
for serious debate. Are we now to seriously entertain the implied argument of
the current Supreme Court majority that people who supported the legality of
slavery, the rape of their slaves and wives, their right to marry off their
daughters without their consent, and the right of Masters to split up slave
families through sale, outlawed abortion because they cared about the unborn? [2]
The people who made abortion illegal
saw nothing wrong in allowing the children of slaves to be sold away from their
parents. Margaret Garner, the inspiration for Toni Morrison's book Beloved, was a slave who killed her own
daughter and tried to kill her sons and herself rather than allow her family be
re-enslaved. It is likely that other slaves tried to abort their children
rather than go through the pain and risk of childbirth just to see their
children enslaved or sold away. Slaves were people, after all, even if slaves
are rarely depicted as such in discussing history. Even accepting the Court's
dubious morality claim, is it immoral to abort the fetus of a child who will be
born into slavery? It is intellectually dishonest for the Court to claim the
ban on abortions in antebellum times was a moral act when applied to slaves.
It also
shows the contingent nature of the morality of abortion. Sixty percent of women
getting abortions in the United States today are already mothers. Half of
those, 30%, of all abortions, already have two or more children. Does anyone
really think that a woman who already has two children but feels she can't
handle a third for whatever reason is being immoral by aborting her fetus and
that some third party who will bear no responsibility for providing for and
raising the child cares more about her unborn child than she does?
The Court in Dobbs hasn't abandonned that paternalist approach in justifying the
absence of the right to abortion. It cites laws "which generally allow
women to drop off babies anonymously and that a woman who puts her newborn up
for adoption today has little reason to fear that the baby will not find a
suitable home." This overlooks the
fact that childbirth is a life-threatening medical condition. Forcing someone
to give birth is involuntary servitude which is banned by the Thirteenth
Amendment. Also, there is no such thing as anonymity since the discovery of
DNA, and any responsible parent or child would seek to determine the medical
history of their biological parents if only to understand their own healthcare
needs and risks. But more importantly, the Court's logic can be considered
supporting child trafficking after siding with rapists. The Supreme Court is
saying the state is within its rights to force women to give birth to supply
babies to the adoption market. The mention of adoption as a justification for
banning abortions belies the Court's claim that it may not consider the real-world
effects of its decisions. "We do not pretend to know how our political
system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have
no authority to let that knowledge influence our decision. We can only do our
job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case
accordingly." The Dobbs decision
allows states to tell pregnant women "so die."
Here, the pro-choice forces demonstrate their
incompetence by not introducing legislation requiring the state to pay for the
medical care, upkeep, and child-rearing costs for any woman denied an abortion
who is forced to carry the child to term.
So,
according to the Court majority, the unenumerated rights in the Constitution
had to be present in the mid-nineteenth century, when women and Blacks were not
allowed to vote or own property. They weren't allowed to sit on juries. They
could be raped by their husbands or given away in marriage by their fathers.
Like slaves, women had no rights. The children of slaves were the property of
their masters.
Why Roe
was Overturned
The
Court's decision to overturn Roe is a
perfect example of how the Court lies. And I don't mean like when Brett
Kavanaugh during his confirmation hearing said that Roe was "settled law" and then voted to overturn it, or
when Amy Coney Barrett said she believed in stare
decisis and then voted to overturn Roe.
I mean lying in its decisions. It held "The nature of the Court’s error
[in Roe], like the infamous decision
in Plessy v. Ferguson, was also
egregiously wrong and on a collision course with the Constitution from the day
it was decided."
Plessy
v. Ferguson, the case that permitted segregation as long as the facilities
were equal, took away from Black people clearly enumerated rights in the
Constitution. When Plessy was argued,
the Blacks claimed that being separated made them second-class citizens. The
Court said no, that if they felt disrespected by being separated, it was a
psychological problem of the Blacks, pointing to the purported equality of
facilities. That decision was wrong in substance as well as the law.
Segregation was wrong, period.
To compare Brown v.Board of Education, which
overturned Plessy, with the Dobbs decision overturning Roe shows the clever dishonesty of the
Court by raising a trivial legal argument to the level of a serious
centuries-long denial of rights. Alito says they were both on a collision
course with the Constitution from the beginning. Plessy overruled clear provisions of the Constitution. So, what was
the problem with Roe?
It was mechanical, not substantive.
The fight over abortion, from the Court's perspective, is just a fight over
exactly when a fetus becomes viable, which is when the state has a compelling
interest. The Justices can find no Constitutional basis to justify the
trimester scheme in Casey. Part of
its reasoning for overturning Roe is
that progress in medical care has changed the point of viability of the fetus. Notwithstanding
medical advances, lungs don't develop until 21 weeks. The defects in Roe are legal procedure, not substantive
because the Justices say the decision should be left to the states, not that
abortion is illegal, as is racial segregration in schools.
Even though Plessy
was obviously wrong from the start, the Warren Court that overturned it was
composed of a former Governor, three former Senators, and two former Attorney
Generals, one of whom had been a prosecutor at the Nuremberg War Crimes Trials.
It was a unanimous 9-0 decision.
The Dobbs decision overturning Roe was decided by 5-3-1, all lawyers
with no significant accomplishments to their names, other than having the
proper political pedigree and young age to be appointed for a lifetime to the
bench. They have spent their whole life playing telephone with other lawyers.
Logic would seem to dictate that a Supreme Court, the final arbiter of all
conflicts in the government from which there is no appeal, should be populated
by renowned people of unquestioned integrity with diverse experiences and
widely recognized prior accomplishments. Nine lawyers from three law schools
who no one outside the legal profession had ever heard of before they became
justices doesn't warrant throwing out Stare
Decisis, the core function of the law.
Oliver Wendell Holmes, Jr., one of America's
greatest Justices, said about the law. " The life of the law has not been logic:
it has been experience. The law embodies the story of a nation’s development
through many centuries, and it cannot be dealt with as if it contained only the
axioms and corollaries of a book of
mathematics."
The Court's majority in Dobbs said the
exact opposite: "But
we cannot exceed the scope of our authority under the Constitution, and we
cannot allow our decisions to be affected by any extraneous influences such as
concern about the public’s reaction to our work."
The Court's claim of impartial
interpretation of the law is belied by its rewriting of the Second Amendment.
(See http://www.leinsdorf.com/2022/second%20amendment.htm
Stare
Decisis - The Role of the Court
Stare
Decisis is
Latin for "to stand by things decided." It is the core function
of all courts. It serves several
purposes. It "protects the interests of those who
have taken action in reliance on a past decision. It reduces incentives for
challenging settled precedents, saving parties and courts the expense of
endless relitigation. It contributes to the actual and perceived integrity of
the judicial process, and it restrains judicial hubris by respecting the
judgment of those who grappled with important questions in the past."
So, overruling
precedent is a serious matter, given the interdependence of judicial decisions.
The Court is supposed to provide certainty, stability, and justice. The Dobbs
decision has done the opposite. The Court rarely overturns precedents, so
what prompts it to do so?
The previous major
decisions that had to be overruled were Dred Scott, Lochner, and Plessy. Dred Scott was a slave who
sued for his freedom after being brought to a free state. Rather than limit
itself to the question at hand, the freedom of Dred Scott, the Court
gratuitously went further, declaring that Black people could never be citizens
and ruling that the Missouri Compromise of 1820 was unconstitutional. Dred
Scott was overruled by the Civil War and the passage of the 13th,
14th, and15th amendments.
Joseph Lochner was a baker in Utica, New York, who
worked his employees for more than 60 hours a week in violation of New York's
1895 Bakeshop Act. The Court in Lochner famously ruled that the labor
restrictions were a violation of a worker's right of contract protected by the
equal protection clause of the 14th Amendment. In other words, New
York's law took away from bakers the right to work more than 60 hours a week.
The Lochner doctrine
was used in the 1930s to invalidate much of the New Deal during the Depression.
The Court ruled that minimum wage laws for women and children were
unconstitutional because they deprived workers of their right to work for less.
After Roosevelt's 1936 landslide and his disastrous attempt to "pack"
the Court, Justice Owen Roberts switched sides to uphold a Washington State
minimum wage law, consigning Lochner to the dustbin of history.
An interesting side note about the
double-edged nature of stare decisis is that some of the "four
horsemen" who were the conservative anchor on the Court, old men who had
served decades on the bench, could see that their jurisprudence was not helping
to remedy the horrendous unemployment and economic problems facing the nation.
Some, specifically George Sutherland, who had been a Senator, and Willis Van
Devanter, who had been more concerned with judicial procedures than deciding
cases and was seriously ill, wanted to step down to make way for new blood. As
men of high honor, their very identities as Supreme Court Justices compelled
them to adhere to stand by things decided ‒ stare decisis. They
couldn't very well start voting in contradiction to ideas they held and acted
upon their whole lives. They had made decisions that they couldn't go back on.
Federal court judges
have a mandatory retirement age with a pension plan. Supreme Court justices, appointed for life,
have no retirement plan. Congress determines their pay after leaving the bench.
In 1932, as the economic crisis deepened, Supreme Court justices' retirement
pay was cut in half. It was restored in 1934, but as the Court started
declaring its New Deal legislation unconstitutional, Congress got mad and
decided to punish the justices by cutting their retirement pay again, creating
a financial incentive for the justices to stay. Realizing its error, Congress
quietly passed a bill allowing Supreme Court justices to retire at full pay,
just like the rest of the federal judiciary. Van Devanter then retired on June
2, 1937. That broke the logjam, and Sutherland followed six months later.
In 1896, the Supreme Court ruled in Plessy v.
Ferguson that distinctions based on skin color were not racist, upholding
the legality of segregation laws under the police and health powers of the
state. It has never explicitly been overruled. Fifty-eight years later, in Brown
v. Board of Education, the Court ruled that separation is inherently
unequal, so segregation in schools is illegal. The ruling set off a firestorm
and didn't touch other forms of racial discrimination, like in voting or public
accommodations. So, why did the court act?
The atomic bombs
that were dropped on Hiroshima and Nagasaki ending World War II in the Pacific,
were made mostly from uranium taken from the Shinkolobwe mine, the richest vein
of the metal in the world, in Katanga Province of the Belgian Congo. With the
anti-colonial movement gaining traction in Africa after the war, the United
States saw the need to curry favor with the newly emerging independent nations
if only to keep Shinkolobwe's ore out of Soviet hands during the Cold War.
The United States
couldn't be seen to be a segregated country and expect the African nations to
sign as supporters of ours in the contest with Communism.
So, what was the crisis that required the Supreme
Court to reverse Roe v. Wade? There wasn't any. Like Dred Scott,
instead of deciding the narrow issue of whether Mississippi's 15-week ban was
constitutional, as Chief Justice Roberts did, the Court majority took the ball
and ran it over the finish line to decide all kinds of extraneous things. Then,
it used the political cop-out of saying that the decision applies only to
abortion, as it did in Bush v. Gore , which is legal-speak for
"this is a political decision."
Why Roe was
Right
The decision in Roe v. Wade
was handed down on January 22, 1973, five days before the signing of the Paris
Peace accords ending America's combat role in Vietnam and securing the release
of its prisoners of war. It capped a decade that transformed the United States.
Per capita income in the
United States increased by 50% between the end of World War II in 1945 and John
Kennedy's election to the presidency in 1960. In 1963, it was possible to get a
good job with only a high school diploma at a salary high enough to marry, buy
a house and raise a family. By 1970, just seven years later, that would be a
pipe dream. The Vietnam War exposed the internal contradictions of a society
waging a major war, putatively for someone else's freedom, largely with
draftees who couldn't vote, many of whom could still be denied service in
restaurants and hotels merely because of their skin color. At the beginning of
1967, when the United States had 490,000 troops in Vietnam, it was illegal for Blacks and whites to be
married and live in Virginia.
Competition from foreign imports and offshoring of
manufacturing driven partially by environmental regulations brought
middle-class income growth to an abrupt halt which was compensated for by women
having to enter the workforce in droves. In 1950, 86.4% of men were in the
labor force compared to 33.9% of women. In 2020, women in the labor force had
risen to 60.3%, while men's participation rate had fallen by 1/6th to
70.3%.
Forcing people to
bear children they couldn't afford or have time to raise merely to satisfy
someone else's religious beliefs seemed to be clearly a violation of the First
Amendment prohibition against establishing religion, although the Court did not
cite those grounds. When everyone lived on a farm, children were an economic
asset. Even a three-year-old can feed the chickens or watch the sheep. Current
estimates are that it will cost $300,000 to raise a child born in 2022 to the
age of 17.
The Dobbs decision
is a disaster, not just because it will prevent a few poor women from getting
abortions or because a few will die from lack of access to needed medical care.
It is a disaster because it is clearly a religious decision based on the
personal beliefs of the justices. While Dobbs may be limited to
abortion, however vague a standard that may be, the mindset that crafted it
looks set to remain for decades, allowing personal beliefs to trump science and
equity in public policy. Worst of all, it further undermines the public's
confidence in the impartiality of the law and the Court.
When Lochner was
overruled, the Justices were forced to concede that the Constitution does not
endorse any specific economic philosophy like laisser faire. The
Constitution is not supposed to endorse any religious philosophy either.
Interpreting the Constitution as a sacred text is a recipe for disaster because
reality is more complicated and incomprehensible than any philosophy.
Return to Institute of Election Analysis Home
Page