Charles Fried, the Attorney General for Ronald Reagan once argued before the U.S. Supreme in favour of prohibiting abortion rights in 1989 in the case of Webster v. Reproductive Health Services. In that case a Missouri statute forbade the use of state funds or facilities for abortions and on behalf of the federal government he argued that Roe V. Wade should be overturned. He thought abortions should only be permitted in the most extreme cases such when the life of the pregnant mother was at risk. Now in 2021 he has changed his mind. In 2021 he believed the rule of law required the court to uphold the old precedent of Roe v. Wade. (I don’t actually agree with this point).
Many thought the American law was settled by the case of Roe v. Wade. It has been the law for decades. Recently, case went to the American Supreme Court out of Mississippi that challenged this. This was the Dobbs case. It was the case that overturned Roe v. Wade The current Supreme Court is packed with conservative judges after former president Donald Trump appointed 3 new justices to the court.
Currently, polls show that 60% of Americans believe that Roe should remain the law, but a very vociferous minority strongly believes that it should be overturned. The court ignored the majority as it should if the law requires it. Many American women are shocked that they have lost a right they have had for decades. How can that be?
Charles Fried said before the Supreme Court decided to overturn Rowe v. Wade “To overturn Roe now would be an act of constitutional vandalism — not conservative, but reactionary.” He said that because he considers himself a true conservative in the style of Edmund Burke. As Fried wrote, “In 2005, testifying in favour of the confirmation of John Roberts as chief justice, I said that I thought he was too good a lawyer — a conservative in the manner of Edmund Burke and John Harlan, not a reactionary — to vote to overrule Roe.”
Fried now says that Roe has grown roots in American law and is therefore a firm constitutional right, which the court should not pull out by those roots. But that is what they did. He said the current Supreme Court is busy tearing up rights by the roots that have been there for a quite a long time. Examples he gave were the Voting Rights Act of 1965. In a recent case it said we don’t need those rights anymore. As a result America has been flooded with voter suppression statutes. The right to vote has been stripped in many state since then. Fried believes the court has done this in order to please a minority “on one politically charged issue after another.” Fried considers that constitutional vandalism.
Those are strong words considering that the Supreme Court of the United States, just like the Supreme Court of Canada, is permitted to overturn its own precedents. It is not bound by those precedents though both courts have acknowledged that this should not be lightly or often done for it does undermine certainty of law. Yet, it does do that from time to time, for example famously, in the case of Brown v. Minster of Education in the U.S. where doing so has been applauded by liberals even though long standing precedents were rejected. They did not consider that vandalism. Fried considered it the growth of the common law. Law changing with changing with changing times. How is that different?
By asking this question I do not want to be seen as approving the politicization of the American Supreme Court. That is another issue. This is what Justice Sonia Sotomayer said in the current Mississippi case before the court,
“Will this institution survive the stench that his creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible. It is what Casey talked about when it talked about watershed decisions. If people actually believe that it’s all political, how will we survive? How will the Court survive?”
To Katie Roiphe, the Director of Cultural Reporting and Criticism Program at NYU, it does seem that this is the Supreme Court entering the political fray and taking a side with one group of partisans against another. She sees it crippling to have the Supreme Court appear to part of “partisan fighting and this kind of political rage,” when it should be above the fray. But isn’t that what happened when the Supreme Court originally decide Roe? She enlisted conservative icon Justice Scalia to support her argument. Justice Scalia had said in 2015 in the SSM case,
“a system of government that makes the people subordinate to a committee of 9 unelected lawyers does not deserve to be called a democracy… This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.…”
Those are powerful words by Justice Scalia, but we must remember they were uttered in a decision of the US Supreme Court to recognize same sex marriage by overriding a law enacted by a democratic government. Many liberals have widely praised the decision of the US Supreme Court, but will they like it so much, when such reasoning is used against their own holy causes, such as voting rights, or laws permitting unlimited rights to donate funds to political candidates? Democracy is complicated and we should be careful about over simplifying it.
Others see the current trajectory of the American Supreme Court and American law towards authoritarianism. As Mary Fitzgerald of Open Society Foundations in the New York Times, “If Roe falls, the United States will instead join a small cadre of increasingly authoritarian countries that have become restrictive on abortion in recent years.” Justice Fried agrees with Fitzgerald because he sees the 3 Justices appointed by Trump as joining “a process of undermining the ability of the court to reign in an authoritarian president…If we get an authoritarian president in 2024, the court will not be there to protect us.”
Charles Fried made the important point that this is not unrelated to the issue of gerrymandering. The process of gerrymandering where voting district are designed to put as many possible voters in one district to dilute the effect of that group. It is inherently undemocratic for it gives some people a more powerful vote than others. Gerrymandering allows a minority to get into power and do what the majority does not want. “The American Supreme Court should have put an end to it.” Even though gerrymandering has created unfair and inherently undemocratic systems of government, Fried said,
“the Supreme Court said ‘not our department.’ Well if it isn’t their department to protect democracy I don’t know what is…I do have a long perspective. I was born in Prague in 1935 Czechoslovakia was a real democracy and the demons of hell came out and spoiled that fro 50 years! Now I see those people remerging and I hear the same tunes and it scares me.
And those are the comments from a Republican who served a Republican president. A true conservative in other words. I wish we had more like him.