Liberal Justices Demand An 'Almighty' Court | Opinion

For decades, left-leaning legal scholars have worshipped the idea of an all-powerful Supreme Court, imbued with incontestable, non-negotiable and altogether incomparable power. But during Wednesday's oral arguments over the Mississippi abortion law, the three liberal Justices went a step further. They made clear their conviction that the Court's will is also unchangeable, enduring forever. In other words, this is an institution that is not just almighty, but also eternal. Hallelujah, praise the Court, and amen!

The main argument in defense of Roe v. Wade from the current liberal bloc on the bench seems to be that the decision has been "settled law" for so long that to alter it by even the slightest jot or tittle would be dangerous. Justice Sonia Sotomayor asked plaintively during oral argument: "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?... I don't see how it is possible."

How is it then possible that we've survived for nearly a half century under the "stench" Roe itself created "in the public perception," when a prior court committed the undeniably "political act" of obliterating nearly 200 years of legal history regarding the regulation of abortion in all 50 states? Some 23 of those states had already moved toward some form of legal abortion, with various limitations, spelled out in laws painfully negotiated and ultimately approved by majorities of the peoples' elected representatives.

In response to the wrenching change forced by the Court, a powerful pro-life movement exploded across the country. Massive attendance at the annual March for Life every year in Washington shows that much of the public still refuses to accept Roe as "settled law." Rather than calming the nation and uniting the people, the Court's flat-footed intrusion into abortion policy promoted agitation and polarization that refuses to subside.

The heart of the problem is that the Supreme Court is the only branch of government which, by its nature, has no responsibility to negotiate with other institutions or to respond to public opinion. Decisions of the most powerful court on Earth are never the products of deals and only rarely involve compromise. But they can be altered, revised or scrapped altogether by later decisions in the light of new circumstances and real-world problems fostered by ill-considered doctrines of the past.

Defenders of Roe have mobilized stare decisis—the concept that any court should, as a general rule, feel bound by its own prior holdings—in their behalf. But even first-year law students learn that a court can overturn its own precedent if it has a strong reason. Perhaps the best example is the 1896 decision Plessy v. Ferguson, which endorsed segregation on railroad cars based on the notion that "separate but equal" satisfied the 14th Amendment guarantee of "equal protection of the laws."

Unfortunately, that pernicious doctrine lasted just a bit longer than Roe has (58 years versus 48 years so far). But the Court reconsidered its mistake (unanimously) in Brown v. Board of Education and launched the civil rights revolution, to the enormous benefit of the country. In last week's oral arguments, Justice Brett Kavanaugh listed a series of crucial decisions that overturned previous judgments to the benefit of our legal system.

Supreme Court protest
WASHINGTON, DC - DECEMBER 01: Police use metal barricades to keep protesters, demonstrators and activists apart in front of the U.S. Supreme Court as the justices hear hear arguments in Dobbs v. Jackson Women's Health, a case about a Mississippi law that bans most abortions after 15 weeks, on December 01, 2021 in Washington, DC. With the addition of conservative justices to the court by former President Donald Trump, experts believe this could be the most important abortion case in decades and could undermine or overturn Roe v. Wade. Chip Somodevilla/Getty Images

The argument by liberal justices that new members of the Court must not reconsider major judgments by their august predecessors is an insult to history, judicial independence and common sense. Not even the much-debated Catholic doctrine of papal infallibility has ever suggested that a new pope must feel bound to embrace every word of his various—and often disagreeing—predecessors. Certainly, scripture may be immutable and divine, but the interpretation of those writings changes from century to century, if not year to year.

For Americans, the Constitution counts as our sacred scripture and neither the assertions of Roe, nor any whisper or hint about abortion, appears anywhere in it.

There is, of course, a means by which pro-choice activists can enshrine "abortion rights" as constitutional rights: by amending the Constitution.

They might well invest their future efforts in promoting a brief, unequivocal amendment preventing future Congresses and state legislatures from limiting access to abortion in any way under any circumstances. All they need to do is get two-thirds of the Senate, plus two-thirds of the House to line up behind the amendment, then go out to the 99 state legislatures across the country and get at least 75 of them to ratify that new Constitutional change.

In other words, it will never happen.

In fact, the prospect of using normal constitutional processes to insert "abortion rights" into our founding document is so inconceivable that it highlights the outrageousness of pretending that those rights have been hiding there all along.

The claim that constitutional interpretations cannot and must not be altered or reconsidered to correct this preposterous presumption is a desperate, last-ditch effort by panicked, partisan hacks, who tremble at the cleansing and clarifying process already underway on the biggest, best national stage.

As they say to open sessions of the great judicial body of John Marshall and Antonin Scalia: "Oyez! Oyez! Oyez!... God save the United States and this Honorable Court!"

Michael Medved hosts a daily radio talk show and is author, most recently, of God's Hand On America: Divine Providence in the Modern Era. Follow him on Twitter: @MedvedSHOW.

The views expressed in this article are the writer's own.