Honorable Associate Justice Brett Kavanaugh
18 May 2022
The secret is out in the form of an aborted draft of a U.S. Supreme Court Opinion written by Justice Samuel Alito. To wit, Jane Roe v. Henry Wade, the leading abortion precedent decided by the U.S. Supreme Court in 1973, will likely be overturned.
Multitudes of women are madder than hell and have taken to the streets. Polls indicate that at least 85 percent of respondents believe abortion should be legal in some circumstances. The rub is in the timing of the termination and the reason therefor. A subsequent case in 1992, Planned Parenthood v. Casey, essentially upheld Roe v. Wade, but with modifications allowing states to provide restrictions for abortions during the first trimester of pregnancy and disallowing them to subject women to an undue burden or obstructive legal process in the event they were carrying an unviable fetus. Nevertheless, a little more than half of all respondents do not want Roe overturned.
The ideological bias of the avowedly apolitical Court has been made painfully obvious in this case about a subject people would rather be kept private. The Court has apparently fouled its bed with an excremental opinion. The possibility of blood on the streets including that of the justices, who are now under guard, may motivate them to let Roe stand for the sake of tradition, with a slight modification, perhaps, and to recommend federal legislation or a Constitutional amendment.
The justices are distraught over the leak. They believe the premature disclosure wrecks the integrity of the court. Let the courthouse collapse then, the mob says. Yes, we shall try the case on the streets if the court is not working for us. First of all, we were all unborn at one time, so this case tries our right to life after conception regardless of viability and quickening, not to mention the alleged absolute right of a woman to bear or not to bear us at all.
The draft opinion of the court informs us that there is no expressed right to abortion in the Constitution, the highest law of the land, although the court has a habit of filling it up with rights previously unnamed. A right might naturally be implied from deeply rooted tradition. The conservative justices insist there is no such thing in this case although the thing is right in front of their faces, in the form of the longstanding precedent they would overturn along with the centuries of struggle it took to get to that precedent. They would strictly construe the Constitution instead of use it as a fulcrum of controversy for the liberal advance of civilization. But is not that advance, at least according to liberal historians, measured by the liberation of the underprivileged and oppressed, especially the female half of the human race?
Strictly speaking, it is judge-made law so judges can say it was wrong in the first place and unmake it. They have been doing that ever since they took the lawmaking power from kings and declared it to be common to their own courts and not the kings' courts of yore. The law is just too complex for a king and a commoner to understand, they said. Times and circumstances change, so judge-made law has to catch up from time to time. Never mind the hypocrisy and absurd contradictions of the law common to their courts personified by Sir Edward Coke, for decisions must be made case by case according to vague, abstract principles divined by judges. In any case, it is the political cause that counts and not the principle, for politics is the distribution of power worshipped by religion. In this instance, the court, to suit the ideological bias of the conservative justices, would graciously defer to the state legislatures, which are at the moment being stacked by their party against the majority of people.
The Roe v. Wade decision looks like a statute, reason the deferential conservatives, and the proper place for statutes is the legislature, not the court, so let the state legislatures or the federal congress play political football with the issue, maybe get another Amendment to the Constitution, if possible, which is improbable given the filibuster in the Senate and the self-serving political bias of democratic-republican states regardless of issues—thankfully, this is not a true democracy!
That sounds good to those of us who wish Jefferson had managed to smother the Supreme Court in its crib long ago. Who needs an elite court of review, or a senate, the vestige of a house of lords, for that matter? The very idea of a few unelected judges presiding over a court of review and making up their own law in the name of god or nature or reason to fill up the gaps in writing with their political biases is anathema to true democracy, so abolish the house of lords and consign Sir Edwin Coke to the Tower of London. They may call it common law but it is too often uncommon; that is, at variance with the general will of commoners.
The court confuses means with ends, procedure with substance, and declares liberty substantial because that word along with life and property is associated with due process in two amendments. No wonder means and ends are confused. Due process is substantial law because without it procedures for realizing it are insubstantial or in vain. That is not to say that any procedure will be adequate, for the means must serve the end well.
There are arguably procedural rules or laws that simply cannot violate the substantial constitutional rights of those affected by them. For example, in Wakinekona v. Olim, 459 F. Supp. 473 - Dist. Court, D. Hawaii 1978, Delbert Kaahanui Wakinekona, serving three life sentences, complained that his transfer from maximum security in the islands to a mainland prison because the prison on Oahu was being revamped violated his constitutional right to substantive due process. Other prisoners had said that the mainland prison had far better conditions. The court agreed with Assistant Attorney General Michael Lilly that the transfer procedure established by the state did not create or violate substantial Constitutional rights. The prisoner asked Lilly a rhetorical question as to how he could possibly serve three life sentences. Mr. Lilly responded that, at the end of the first life sentence, he would be buried at the prison cemetery.
Now there are over two hundred different definitions of liberty, so the Supreme Court of unelected justices has bestowed upon itself the power to define liberty howsoever the court may be arbitrarily inclined, inserting whatever rights it might invent to fill a bottomless pit of its own digging. Throw in, if you please, a liberty such as the right to privacy, heretofore unnamed in the Constitution, and declare that liberated women have a constitutional right to abortion if performed at a certain stage of pregnancy. After they come out into the open, however, and depend on that decision for fifty years, a handful of unelected, politically motivated judges declare that women do not have that Constitutional right to their bodies because a human life is being destroyed. What then is this thing called law?
Not only has the court broken its own precedent, it has defied a deeply rooted, ancient custom of society. Let us be honest. Human beings are lovers yet are also natural born killers for reasons good, bad, and ugly. A child is part of its mother, and mothers usually have a guilty conscience over their choices but believe they have made the right decision. An early statute, “Thou shalt not kill” means “Thou shalt do no murder.” Killing someone in self-defense is not murder. Capital punishment is not murder. Killing hundreds of thousands people including innocent men and women and babies in World War II was not deemed murder. An ancient custom considered women and children as property of men, so they could be disposed of at any time. If a man in some primitive cultures did not like the looks of a newborn baby, he might kill it. Abortion by different means has been practiced for thousands of years on this wonderful planet of ours. Abortion has been practiced to limit population to its means of subsistence, and prohibited to raise the number of men needed to defend nations. Today an estimated quarter of pregnancies end in abortion, and that percentage is bound to continue if abortion is made illegal, but with the death of far more mothers.
All that being said, and even more left unsaid, why not reverse all of the Supreme Court's insubstantial substantive lawmaking, and enjoy the ensuing legislative chaos?
No, what is done is done. It took a very long time to arrive at Roe v. Wade. Move to France and see how civil law is doing if you cannot stand common law. Common law despite its flaws is a deeply rooted tradition in spite of objectionable judge-made law that calls itself common because it is common to the courts, yet it is often not common to commoners except that it is dictated to them by judges who replaced the sovereigns of old and substituted what they called natural law or reason for the god cited by kings. Bentham, in his Principles of Morals and Legislation, called it "judiciary law."
“Judiciary law as it might aptly be styled everywhere that fictitious composition which has no known person for its author, no known assemblage of words for its substance, forms everywhere the main body of the legal fabric: like that fancied ether, which, in default of sensible matter, fills up the measure of the universe. Shreds and scraps of real law, stuck on upon that imaginary ground, compose the furniture of every national code. What follows?—that he who, for the purpose just mentioned or for any other, wants an example of a complete body of law to refer to, must begin with making one.”
We are stuck with common law for the time being, so may we understand what it is and hold judges responsible for it. We should be responsible for our own nature, a nature that tends to ignore moral education and the contract implied in “go forth and multiply.” And we should listen to the heartbreaking stories of couples who wanted babies but had good reason to abort. The fault is not so much with our judges but with ourselves, and that is the only legitimate reason for their being.
I've heard there are other leaks as well. A uniform national law protecting abortion would do away with all the state laws that are starting to force women to have to cross state lines to get an abortion in a state where it is legal. The poorest can't afford that.
What is lacking in the Supreme Court is a sense of empathy. The Supreme Court is overloaded with ideology and lacks empathy. What the 21st-century needs to solve its problems are not the old ideologies that have failed over and over again when history repeats itself and God is always on the side of the winner, but a whole new perspective.
In the long run, and shorter than anyone thinks, women will rule our world, and it will be a much better, less testosterone driven, place.
Ron