This week was a big one for the Supreme Court, although neither big decision—on New York’s gun carry law or Roe v. Wade—was a surprise. The abortion decision, of course, was telegraphed weeks ago when a draft opinion leaked. And the gun decision was widely anticipated when the Court agreed to take the case.
Both decisions are disturbing for reasons that are obvious, but they’re also disturbing for a less obvious reason—they fly in the face of public opinion. In that sense, the decisions are troublesome for what they say about the attitude of five of the conservative justices. The justices apparently have an agenda, perhaps indicated by Justice Thomas’s concurring opinion suggesting that other rights granted by the court—accessibility to birth control and same sex marriage to name two—could face the same scrutiny that Roe did.
The Court has no army or police force to enforce its decisions. Instead, it relies on the American public’s allegiance to the rule of law. But the law, if it’s to be respected, needs to reflect some sort of consensus on the part of the public. A vocal minority obviously strongly objected to Roe’s granting women the right to decide for themselves whether they wanted to terminate a pregnancy. But they were, and still are, a minority. A less strident majority supported the idea of a woman’s right to choose.
By the same token, a majority of Americans favor sensible restrictions on the availability of guns. America is suffering from a pandemic of gun violence, yet attempts to impose any limitation on who can use what kind of gun with what kind of ammunition runs immediately into the sacred proscription of the Second Amendment.
We’re confronted by a certain lack of consistency here. On the one hand, the Court claims in the Roe decision that the initial granting of the “right” to abortion wasn’t supported by history or tradition and flew in the face of hundreds of years of legislation and common law. Without getting into whether that reasoning is supported by the facts, that seems to be the position of the Court’s majority.
On the other hand, confronted by two hundred plus years of laws restricting the availability and use of guns, rifles, etc., the Court’s majority found a “right” that had been overlooked for most of American history. The Second Amendment suddenly became a blank check for owners and would-be gun owners that overrode most attempts to restrict their use and, as illustrated by the New York case, went against common sense. In testimony during their confirmation hearings, Justices Kavanaugh and Gorsuch indicated that Roe v. Wade was settled law. Somehow, in the interim, they changed their minds—or they lied during their testimony. More recently, we have learned that Justice Thomas ruled on at least one case where his wife had an active interest in the outcome. Thomas neither recused himself nor revealed the potential conflict of interest.
If the Court wanted to encourage contempt for its decisions, weaken respect for its rulings and diminish its reputation as a fair and impartial interpreter of the Constitution, it could not have chosen a better path. This Court is either tone deaf, or a runaway horse with the bit in its teeth. This Court, it now seems clear from reading Chief Justice Roberts’s concurring opinion, is no longer under his control. “I would take a more measured course,” he writes in his concurrence. “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them. Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis. The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.”
By custom and practice, the Court ordinarily confines itself to the issue at hand in deciding a case, keeping its opinions as narrow as possible. In this case, however, Justice Thomas ignored those restraints, suggesting that the Roe decision could open the door to other challenges, and he pointed the way to them as though he was inviting more challenges to recent and not so recent precedents. Once again, a majority of Americans now support the idea of same-sex marriage and the right of gay and lesbian persons to have consensual sex. Should we expect the Court to take it upon itself to dissolve marriages and invade bedrooms?
So, what is to be done? The last thing to be done is to spend time, money and energy organizing a big demonstration in Washington where people can protest, however peacefully, and go home charged up with moral outrage. Rather time, money and energy needs to be spent organizing in cities, towns and villages across America to get out the vote in November. Control of Congress is paramount if anything is going to change.
Without that, you can count on a continuation of the course the Court is on.