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Could Amy Coney Barrett overturn Roe versus Wade? And should she?

President Trump will announce his nominee for the US Supreme Court on Saturday, at about 9pm Irish time. Officially, nobody knows who the nominee will be, but the betting markets, and smart pundits, are almost all agreed: It will be Judge Amy Coney Barrett, presently a Judge on the 7th US Circuit Court of Appeals:

Judge Amy Coney Barrett has emerged as Trump’s overwhelming favorite to replace the late Supreme Court Justice Ruth Bader Ginsburg, according to several people familiar with the deliberations.

Barrett was back at the White House Tuesday for a second day in a row, according to two sources familiar. The sources said she impressed Trump and others during initial White House meetings on Monday.

She is a former professor of law at Notre Dame university, a mother of seven children, and an exceedingly devout Catholic, who fully subscribes to the conservative “originalist” judicial philosophy. What that means, in plain English, is that she believes that the constitution should be interpreted according to what the people who wrote it meant when they wrote it down. For example: While some judges would ban the death penalty because the US constitution’s eighth amendment bans “cruel and unusual punishment”, an originalist judge would vote to uphold it on the basis that the death penalty was not considered cruel, or unusual, by those who drafted the amendment in the early 1800s.

But of course, nobody cares about that. Most people care what Judges decide, and don’t worry too much about the reasons for their decisions. For the next few weeks, it’s going to be all about Roe versus Wade – the 1973 decision which legalised abortion in the US, and whether Barrett would vote to overturn it.

Would she? She herself has said it is “very unlikely” that Roe would be overturned. Which is, of course, different from saying that she would vote not to overturn it. On the question of how she would vote, her writings seem to suggest that she is at least open to overturning it:

Barrett examined the weight of Roe’s judicial precedence in a 2013 article published by the Texas Law Review. It discussed the implications of stare decisis, the judicial principal through which courts formulate decisions based on precedents set by past cases. “Stare decisis is a self-imposed constraint upon the Court’s ability to overrule a precedent,” Barrett wrote.

The judge cited other opinions that argue Roe does not constitute a super precedent—a term used to describe a decision whose implications are so fundamental to the law that overturning them is especially difficult—and referenced public opposition to the case in her own discourse.

“If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging,”

“Stare Decisis”, by the way, is a legal term that simply means “what has been decided”. It is usually used as an argument that once a court has decided something, it should not then un-decide it, or change its mind. In other words, precedent is binding.

It’s a highly controversial legal doctrine, because there are always people who want to reverse a particular constitutional judgment. Pro-choice lawyers argue that because Roe versus Wade is a supreme court precedent, it cannot be overturned. Conservative Judges argue that if a case has been decided wrongly, or if the facts that underpin a decision change, that the decision should be reversed.

They point to the fact, for example, that the Supreme Court once upheld racial segregation as constitutional, in Plessey versus Ferguson, all the way back in 1896, before reversing the decision in Brown versus Board of Education.

Anyway, to overturn Roe versus Wade, there would need to be five judges of the Supreme Court in favour. Only one – Clarence Thomas – has ever cast a vote to do so. Three others – Neil Gorsuch, Brett Kavanaugh, and Samuel Alito – might be considered possible votes to do so, also. That would get you to four. It’s very plausible that Barrett might provide a fifth vote.

And should she do so, if confirmed? Yes, absolutely.

Not, mind you, because of my personal view that abortion is deeply wrong. After all, overturning Roe would not end abortions in the US – the vast majority of states would keep them legal. But because it’s a decision that has poisoned American politics ever since it was taken.

As Robert George, Professor of Jurisprudence at Princeton University, notes:

That’s very true, of course, and not just on the liberal side. There are lots of people on the right today supporting politicians who they’d never countenance if it wasn’t for abortion.

And by the way, that’s not just a crazy right wing view either. Another person who agreed with it?

Ruth Bader Ginsburg herself:

It was during that same tea that Ginsburg discussed with us her view, close to blasphemy on the left, that abortion had been handled poorly in the 1970s and that Roe v. Wade had taken the wrong approach. It wasn’t that she didn’t believe women needed access to abortions. Rather, she felt that Roe v. Wade had been too abrupt and too undemocratic, engendering an angry, lasting resistance and planting seeds of revenge. She contrasted abortion with divorce, which had also been illegal and highly controversial at one point, yet had been legalized on a state-by-state basis and eventually become a normalized part of life, through a gradual, democratic process.

Overturning Roe would probably cause an immense political backlash for American conservatives, and result in myriad states moving quickly to legalise abortion and provide constitutional guarantees of its legality.

But that’s not a reason not to do it. It was a bad decision, and it has poisoned American politics. In a democracy, laws should be made by politicians, not judges.

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