Supreme Decisions

Berlin, at the end of the Cold War, was a den of spies, vipers, and other miscreants. It was a beautiful place. A cold martini and a cold blade were in equal abundance and the one constant in this cloudy world was a lack of constants. Light might serve as an antiseptic, but in certain worlds a sterilized countertop can be counterproductive. Sometimes things just need to get done, and the public has little desire to see how that takes place. Oftentimes a little blood is necessary to move things into nice, tidy compartmentalized boxes.

 

This has been the European framework for quite some time, the stuff of spy novels, poor-grade action movies and, for certain tourists, flights of fancy. For domestic policy it serves no purpose and, frankly, is somewhat counterproductive.

 

Still, it happens. Those in power often claim a privilege to be able to maneuver in secret. This, they state with solemnity, is essential for their job. If the public were to be privy to these behind-the-scenes dealings… well… the public might be appalled!

 

Yes… that is the point.

 

The public should be appalled. Frankly, they should question the necessity of having the deliberation or the agency in the first place. But that is a topic for another blog.

 

Last week a draft decision from Justice Alito was leaked to the media, the Politico website more specifically. It was couched as a draft majority opinion in Dobbs v Jackson. For those of you who have been living under a rock, this is the Supreme Court case that challenges the Constitutionality of Roe v Wade and Casey v Planned Parenthood. The draft would suggest that Justice Alito has been picked to write the majority opinion, and that the majority is going to overturn Roe v Wade.

 

This does NOT mean that abortion would be illegal in the United States… it means that each state would be responsible for creating its own abortion laws. In one sense it could be looked at as a federal punting of the ball.

 

The leak of the opinion is unprecedented, at least as it relates to the Supreme Court. Quite a few things have leaked into the public square from other deep recesses of government, typically by opposition sources as opposed to those simply seeking transparency.

 

Nothing spells progress like embarrassing the other guy.

 

True to form, both sides of the political aisle began to coalesce around things that, frankly, should not matter.

 

The Democrats have couched this putative decision as evidence that Republicans are seeking to make abortion illegal. There is literally no evidence of that. As I mentioned before, they are taking themselves out of the equation and simply leaving it up to state legislatures to decide on establishing restrictions, if any, in allowing abortions.

 

The Republicans, on the other hand, decided to forgo the celebratory moment of a longstanding desire to overturn Roe and, instead, started focusing on the leak itself. “This was a political move by a Liberal!” “This is a blatant attempt to give the Democrats a pathway to keeping their slim majorities in the House and the Senate!”… Yeah… while there may be an advocacy notative by the leaker, I seriously doubt they were animated by a direct desire to help out Congress.

 

Both sides, of course, are bloviating and, frankly, missing a core point of instruction.

 

For the first time the curtain has been drawn and we now get to see how the sausage is made. And, as we suspected, it is not pretty, nor is it particularly intellectually honest. This draft opinion is from February and, most likely, will go through many, many substantive revisions before it is ultimately released. At least I hope to God it does.

 

One of the many charges levied against the Court… well… actually, courts in general, is that their decision-making process is outcome determinative. They come up with an ultimate decision they want, then work backwards in order to develop the intellectual argument on how they came to that decision. Oftentimes the intellectual gymnastics to arrive at that decision rival the talents of a Cirque du Soleil acrobat.

 

This appears the case here.

 

A question must be asked: Does the State have a fundamental right to protect the lives of its citizens against the actions of others? If the answer is no, then let’s strike down the penal code because it only serves to harass, intimidate, and is not grounded in a governmental mandate. On the other hand, if we believe… as I do… that the government’s sole purpose is to protect the individual’s right to continue to exist, then we encounter a major problem.

 

If Mississippi outlaws abortion, they must do so for a reason. The only viable reason is that the legislature in Mississippi believes that abortion is a homicide.

 

California, on the other hand, decides to allow abortion up to the moment of birth, ergo… not a homicide.

 

Therein lies the rub.

 

Just like you can’t be a little bit pregnant, you can’t either commit a homicide in one jurisdiction but not a homicide in another jurisdiction. One is right; the other is wrong. There is not middle ground in this.

 

If this decision holds, it will create confusion and, frankly, a national absurdity.

 

We will have to see how things progress in the final draft. Still, like seeing who was stabbing whom at cocktail parties in Berlin in 1983 through declassified memos, we now get to see the organic growth of a judicial decision at the Supreme Court level. Both are bloody, noxious, and make us worried who is ultimately running the circus.

 

Recent Posts

NYRPA

Wow.   When I am depressed, despondent, and disaffected, I reach for a glass of Lagavulin and my annotated copy of Judge Benitez’s decision in

Read More »

Blunders

In the fourth grade I was introduced to a hero. My teacher had set up a scheduled “field trip” across the elementary school quad to

Read More »

Men Without Chests

Law school is a wholly loathsome experience. It is frustratingly slow, and in many ways it does not need to be. During the second semester

Read More »

Comments (5)

  • Mark McNulty Reply

    The elephant in the room is that homicide is only a civil crime when one citizen kills another. The unborn are not recognized citizens of the US, their existence as an individual is formally recognized by the State in the form of a birth certificate, issued appropriately at birth. Thus abortion is not homicide in the same way killing a squirrel isn’t homicide or killing an enemy soldier in war is not homicide. The womb is simply outside the jurisdiction of the State and this is already implicitly acknowledged by when citizenship and the birth certificate is issued. Note, there is no “conception certificate,” issued by the State. One can morally condemn abortion all they want, and there are good reasons to do so, but there are no rational, moral or legal reasons to think the State has jurisdiction over what a woman does with her uterus anymore than there are reasons why the US should be determining traffic laws in Madagascar. This is an issue where the Republicans don’t seem to grasp the concept of government overreach and limited government. If people want to limit abortion, try improving access, quality and use of effective birth control and educate your slutty little daughters.

    05/11/2022 at 10:58
    • Steven Lieberman Reply

      PENAL CODE – PEN
      PART 1. OF CRIMES AND PUNISHMENTS [25 – 680.4] ( Part 1 enacted 1872. )
      TITLE 8. OF CRIMES AGAINST THE PERSON [187 – 248] ( Title 8 enacted 1872. )

      CHAPTER 1. Homicide [187 – 199] ( Chapter 1 enacted 1872. )

      187.
      (a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

      Mark…I appreciate your argument but the State does recognize that fetal protection does occur before birth. (See Penal Code section above (a))….also, please refrain from sexist language when attempting to make your point.

      05/11/2022 at 12:16
    • Mike P Reply

      Yet if a drunk driver kills a pregnant woman, he is charged with TWO counts of murder, so the State does recognize the fetus as a valid human life.
      Judging by your comment at the end of your post you don’t have the maturity for rationale discussion, and I move Mark McNulty be banned from posting here.

      05/18/2022 at 09:03
  • Jeff Tucker Reply

    Unfortunately, overturning Roe will not resolve the issue you have addressed in your blog. As you know, Roe says a state can restrict abortions in the third trimester if there are exceptions in place for instances such as maternal health, etc. However, California allows abortions up to the time of delivery. Whereas other states preclude abortions after the 15th or 16th week of pregnancy. Thus, there still remains, even under Roe, the disparity among states as to whether a full term abortion is murder. I think a national law that regulates abortions is needed. However, given the political climate of any given federal legislative makeup, that law could potentially swing wildly, creating uncertainty nationally, as opposed to across state lines.

    Thank you for your thought-provoking article.

    05/11/2022 at 11:19
  • Ken Gryske Reply

    Bloviating…I think I just did that…

    05/11/2022 at 12:31

Leave a Reply

Your email address will not be published.