Cross-examining the High Court
/By Don Varyu
Oct. 19 2021
In 2001, the year after the contentious election of George W. Bush, Gallup began polling Americans on their approval of the Supreme Court. That was a charged time, following the court’s premature decision to stop the Florida recount and crown Bush. (Justice Anton Scalia explained, “we had to do something because countries were laughing at us—France was laughing at us!”) Still, the courts’ approval rating was 62%.
Today, that number has plunged all the way down to 40%--including a full nine point drop from just this last July. Clearly, something happened. That something was the court’s decision to let stand a Texas abortion law that effectively overturned Roe v. Wade. And for good measure, it deputized anyone to hunt down and sue offenders.
And this is just one case in a court docket that’s going to set the country to boiling. The justices will hear arguments not only on abortion, but also voting rights, gun rights, and the separation between church and state. Get ready.
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But I want to step back from the specifics of those cases to ask the high court three questions of an overriding nature:
(1) What about rights? So many of these firestorms revolve around the central issue of individual rights. What does it mean to be American? Do I have the right to my own reproductive system? Do I have the right to freely vote in elections, without interference? Are my rights granted to me by my state, or by my country? Two radical aspects of the Texas law lay out these questions in bold face. First, consider that any citizen of Texas—or any other state or country--becomes a duly authorized abortion bounty hunter, free to investigate, chase down and sue any person having an abortion after six weeks. Or the doctor who conducted it. Or anyone else “abetting” it. That could include an attorney representing the defendant in court. Or even the Uber of Lyft guy who drove the patient to the clinic. (Both companies have already stated they will pay the legal defenses of any driver so charged.)
The penalty is a minimum of $10,000 per defendant. And there’s no limit to the number of plaintiffs who can pile on. It would not be hard to find a thousand anti-abortion activists willing to cash in. So, to quickly do the math, that would mean a judgment of at least $10 million apiece from the woman having the abortion…her doctor…the receptionist at the front desk… and even the sweet old grandmother who wrote a check for $50 to help out.
The Supreme Court decided to let this law stand for the time being on “procedural” grounds, until it fully reconsiders abortion itself later this term.
But now, Texas has doubled down on outrageous. During a U.S. Circuit Court of Appeals hearing, Texas argued that even if Roe v. Wade is upheld, Texas doesn’t have to follow that ruling. The state claimed that since abortion was not dealt with by the founding fathers in the Constitution, the state is free to make its own decision. In other words, anything non-Constitutional that the Supreme Court has ever decided is just a legal jump ball, and a state will always win the tip.
Consider that line of reasoning. If true, Kansas could decide that if a defendant can’t afford an attorney, too bad—you’re on your own. South Carolina could again ban interracial marriage…or resegregate schools. And a President could simply refuse to comply with legal demands compelling relevant evidence or testimony. (Oh, wait, I think that one already happened…)
(2) What about term limits? A year ago, a bill was introduced in the U.S. House that would set an 18-year limit for all Supreme Court Justices. One seat would turn over every two years. In addition, the power of the Senate to confirm or deny nominees would be significantly restricted. Surprisingly, there is some support for this from both sides of the political spectrum. But what do the current justices think? While they profess to stay out of politics, it’s hard to imagine them silent on this one. And think about such a law being passed, and then challenged all the way up the ladder. The court would then have to rule on its own future. Or would all nine have to recuse themselves?
(3) Who’s a “hack?” Four justices have now purposely and publicly stepped up to assure America that the court is not filled with political “pawns” or “hacks.” (Apparently Supreme Court justices can read polls, too.) With the docket they face this session, it seems the justices are going to be hearing more of the same. The most recent addition to the high court, Amy Coney Barrett (along with Brett Kavanaugh, the Ken and Barbie of American jurisprudence), defiantly stated that the court, “…is not composed of a bunch of political hacks.” So there.
But methinks the lady doth protesteth too much. She made that declaration while standing alongside Sen. Mitch McConnell of Kentucky, at an event held in September at the eponymous McConnell Center at the University of Louisville. This is the same McConnell who destroyed the supposed political independence of the Supreme Court in 2016, when he refused to allow the Senate to even consider a nomination forwarded by Barack Obama. Effectively, McConnell told the President, “Drop dead—it’s my court now.”
Justice Barrett may want to consider the lesson here: if you don’t want to be called a “political hack”, perhaps it’s best not to appear in public next to the undisputed dark prince of political hackery.
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