Post # 626   SCOTUS: SHIFTING JUSTICE

Any possible reluctance to criticize the current Supreme Court of the United States [“SCOTUS], by the accusation that it has become “political,” will predictably be further diminished, by its expected decision on the issue of abortion [Dobbs v. Jackson Woman Health Org.]. In the latter matter, the [“traditionally enlightened”] State of Mississippi, by Statute, banned legal abortion after fifteen weeks of pregnancy. The foregoing expectation is fundamentally, based upon the unbalanced political composition of the contemporary Court, which now contains three additional partisan, conservative Justices, appointed, based on their past expressed views by the Trump Administration.

We would choose to highlight three cogent considerations, two of which are legal, the third, societal, in favor of a definitive reaffirmation of the natural right and liberty of a woman to make the personal decision to abort her pregnancy; as decreed in the fifty-year-old precedential case of Roe v. Wade. Such considerations are: (a) The societal stabilizing benefit of recognized legal precedent, (b) The absolute proscription against religious preference under the “Establishment Clause” of The U.S. Constitution, and, finally, (c) the danger to life and health implicit in the obligatory resort to non-professional and illegal, {“back alley”] abortion providers.

  • The sanctity of established legal precedent. The concept and application of recognized legal precedent is consequential in effect. It references a final, determination by an Appellate Court [viz., SCOTUS], which establishes the applicable legal rule or authority, for the future, on a previously controvertible issue.  Such determination is legally and societally, recognized and is productive of stability based upon its recognized resolution and universal acceptance.  The issue, previously contested, and resolved is a determinative source for relevant reference.

The Supreme Court, more than fifty years ago, established the Nation’s legal precedent, regarding the issue of a women’s right of choice as to abortion. The celebrated case of Roe v. Wade, determined the previously contested issue, by ruling that a woman had the personal and legal right to have an abortion. This was and is the settled legal precedent on the subject, and has been recognized and referenced, as stated, for upwards of one-half century.

The subject parties, who would seek to overturn established precedent, by making abortion illegal, vociferously, argue that legal precedent has in fact, been beneficially overturned in past American jurisprudence. citing such cases as, Plessy v. Ferguson [1896], which approved segregation in schools, if they were equal, and Brown v, Board of Education [1954] which indeed, overturned the precedent of the Plessy case; the latter Court, determining that all school segregation was unconstitutional, under the 14th Amendment, and that’ “separate is not equal.” They could as well cite the overruled Dred Scott case, in which the determination was that a Black slave was just agricultural property (a “chattel”).

However, it is rudimentary legal analysis would reveal that when the [properly constituted] Supreme Court, overturned such precedent, it was, specifically for the express purpose of the protection of individual rights, and, manifestly, not their destruction.

It might be argued, as well, that the alteration of precedential law, concurrent with the shifts in Judicial membership, would necessarily lead to the public perception that the application of our Constitution is political and not impartial.

  • The overturn of the Roe case, and the legal banning of abortion, would directly violate of the “Establishment Clause” of the U.S. Constitution:

Article 1, of the U.S, Constitution, among its other provisions, prohibits the making of any law, establishing or affecting the practice [or non-practice] of any religion. A review of “(c),” below, will result in the logical deduction [or the process of elimination] that the underlying motivation and evident purpose of the anti-abortion proponents are necessarily religious, if at all rational. We would refer the reader to “(c)” in support of this conclusion, in order to avoid unnecessary repetition.

  • The proposed denial of a women’s right of abortion, would be a blatant deprivation of her rights to privacy and personal liberty, and result in her necessary and perilous relegation to non-professional, or “back alley” services, and amount to a personal and societal danger.

The avowed, motivational purpose of anti-abortion proponents is a purported reverence for “Life.” This tactical misrepresentation is irrefutably, belied by their empirically demonstrated beliefs and actions, which include denial of benefits for the needy child, after the event of birth, apparently, only valuing life, in utero [the fetus], supporting unregulated gun ownership, favoring the death penalty, denying refuge for desperate immigrants, ignoring, or opposing the existential threat of global warming.

Such evident sentiment and lack of human empathy belie their tactical choice of name, “Right to Life,” as well as their sub-rosa motivations; the latter, by logical elimination can only be based on religion [see (“b”) above and be unconstitutional.

Until the procedurally, troubling case of Bush v. Gore, an Appellant was required to prove, in a prerequisite proceeding [“Writ of Certiorari”] that the case, for which acceptance was sought, by SCOTUS, for determination, was “entirely free” from any political issue, nor had any indirect political impact. This requirement, constitutionally required to avoid the violation of its bedrock principle, ”Separation of Powers,” had been the rule since its inception.

SCOTUS’ steadily declining record of impartial jurisprudence and less than institutional excellence, reached its low point in the entirely political and democracy threatening, “Citizen’s Union” case. In the latter [political] case, SCOTUS, bizarrely, chose to extend the contractual business use and fictional concept of corporate “personhood,” to apply to actual, large corporate political donors; the members of the once, highly venerated Court, thereby sanctioning substantial damage to our representative democracy.

The disappointing and alarming decline of SCOTUS empirically seems explainable by the shifting, and unfortunately partisan, appointments of Justices, based upon their respective political leanings, rather than their excellent record of jurisprudence.

Justice Sonia Sotomayor relevantly and alarmingly stated: “Will this institution [SCOTUS] survive the stench created, in the public perception that the Constitution and its [interpretation] are just political acts?”

-p.

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plinyblogcom

Retired from the practice of law'; former Editor in Chief of Law Review; Phi Beta Kappa; Poet. Essayist Literature Student and enthusiast.

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