The Tough Case of Bad Law(-making)
The biggest problem with SCOTUS revisiting Roe v. Wade is that a successor court is reviewing a judicially created “right” (to an abortion), which is itself reliant upon the derived right of “privacy.” Neither such right is specifically found within the text of the Constitution or the Bill of Rights. Instead, the Roe v. Wade majority discovered, discerned, or distilled an entirely new “right” while staring incessantly into the “penumbra” of the Constitution.
The original ruling and the line of cases, which followed, are reminiscent of the oftentimes tortured and tortuous analysis of Chief Justice Roberts when he writes not so much to interpret and apply the law but to “make” or to “save” a particular law. Rather than applying a law that “is,” he interprets and remakes the law in a way or in an image that he (and others) believe that it should be. It is an application of the “ends justifying the means.” It results in the court engaging in demonstrations of arrogance and acting in fits of hubris. It is entirely possible that the desired ends are worthy, perhaps even noble, but the judiciary is not the appropriate means to legislate … anything.
It is said, “Tough (or close) cases make bad law.” In attempting to make law in a tough case with competing interests and zealous opposing parties, the court made “bad” law, or at the least, utilized “bad” (i.e. inappropriate) means to establish law, which the court believed to be “necessary” or proper. By usurping the power of the legislature, the court placed itself in an untenable position. By saying what the law must be (or cannot be), the court removes objectivity from its rulings. It places itself in a position of defending a “law,” which it establishes, and thereafter bias is unavoidable. As the court (by and through its successors) promotes the rightness of its precedents, “Stare Decisis” takes on a life of its own. Unlike a legislative act, which may be rewritten, made clearer, or even implemented by the legislature to “correct” or alter a judicial ruling, interpretation, or application, there is no reasonable recourse or opportunity available to other (interested) parties to amend, alter, or rehabilitate a judicial edict.
Nevertheless, when a supposed “right” is judicially created, it should be expected that it can be judicially altered or even stripped away. Abortion is one of the most contentious socio-political issues of this or any other time. The state of the law in 1973 was a patchwork of inconsistent local laws, which were themselves applied inconsistently. The goals of the court were seemingly noble: consistency, fairness, and “freedom” (to choose). Undoubtedly, the court endeavored to balance competing “rights” and interests; however, such analyses and determinations are within the purview of legislators.
Legislative bodies collectively represent the objectives, interests, and priorities of the “people” generally. The people serve as the only legitimate source of government power, but the Justices, who serve for life on the Supreme Court, are neither elected by nor answerable to the people. Nevertheless, (would-be) legislators across the nation, including many who ostensibly opposed abortion, undoubtedly breathed a sigh of relief knowing that the high court had taken the pressure off and had taken upon itself the burden of the abortion debate. By the court overextending its power, it allowed legislatures in many cases to abdicate theirs.
However, a declaration of “victory” absent absolute and unconditional surrender by all opposing factions does not in itself end any battle, and the ruling in Roe v. Wade certainly did not squelch the debate with regards to abortion. If anything, it emboldened and entrenched opponents of abortion. In an effort to end debate, the court effectively restricted the ability of the issue to evolve, and a half-century later, the battle rages on.
Since Roe, there have been motivations and efforts by some to use SCOTUS either to stifle legislative action or to legislate from the bench with regards to other hot-button issues (where legislative action was impracticable or deemed ineffective). While the court has demonstrated a reluctance to play that role in most cases, the history of Roe establishes an almost irresistible “precedent.” The motivation to utilize the court in this manner demonstrates both the power of the Supreme Court and the need to keep that power (in fact, all government power) in check.
The potentially unanswerable questions are:
Did the court’s decision in Roe v. Wade improve the nation’s social dynamics and improve the legal landscape, or did it make things worse? In an effort to make things “better,” did the court add fuel to the fire and fan the flames? Would it have been better in the long run had the court allowed the “fires” to burn themselves out — had the court allowed the law (and the people) to evolve naturally, even if inconsistently, among the several states?
At this point, it is likely impossible to say definitively, which was or is the lesser evil. Nevertheless, this is clearly a lesson in how the judiciary should not be used.
