The Supreme Court this week heard oral argument on the Mississippi law that limits abortion after 15 weeks from conception.
As someone who practiced law at the Supreme Court, I listened to the arguments. I think they’ll uphold the Mississippi law. I have a few observations.
Keep in mind that oral argument at the Supreme Court is typically more theater than jurisprudence. The Justices usually already have their minds made up from reading the briefs. But it’s worthwhile theater because it connects the public to the judicial process. Also, it gives some insight into the likely decision which won’t come till next Spring.
My first observation is that much of the public is confused about what the Court is deciding and what it is not. Blame the media for that. Clicks are generated and fires are stoked not by the media presenting cases, but by presenting parades of horrible.
Here, the Court is not considering whether to ban abortion. That’s not on the table. What’s on the table is whether the Court will uphold the law enacted by the legislature of Mississippi which limits abortion in that state after 15 weeks.
It’s worth mentioning that the Mississippi law is consistent with the abortion laws of most other civilized countries. Hardly any countries around the world permit unrestricted abortion rights up till birth, as the pro-choice lobby wants for the U.S.
Moreover, even if the Mississippi law is upheld, abortion will still be wholly unrestricted in other states, even post-15 weeks. Upholding the Mississippi post-15 weeks law will not affect the permissive abortion laws of New York or California or any other state where the people’s elected representatives choose not to enact similar laws.
The three liberal Justices went hard at the lawyer arguing in favor of upholding the law, as expected. Many of their questions were more like speeches, as is their right. But interestingly, they focused not so much on the merits of the law. Rather, they focused on the legal doctrine of stare decisis.
That’s the principle that courts should be loath to change the law, that they should defer to the law as laid down in earlier cases. That’s a good principle, because it means the courts don’t change the rules in the middle of the game. People should know what the law is, and that it won’t be changed willy-nilly after they act in reliance on it. To disregard stare decisis is to permit ex post facto laws.
But stare decisis is not absolute. The Court does occasionally overrule a case when they decide it was wrong. For example, “separate but equal” was considered Constitutional for decades. That was wrong, and the Court eventually corrected itself.
As for the merits of the Mississippi law, which the liberal wing of the Court mostly ignored in favor of stare decisis, the issue before the court is not whether abortion is a good thing or a bad thing. It’s whether (1) abortion restrictions should be left to the people’s elected representatives or, alternatively, (2) there’s a Constitutional prohibition on the people’s representatives doing so.
Serious legal scholars generally agree that the reasoning of Roe v. Wade establishing a Constitutional right to abortion — alternative (2) — is weak. Even liberal Justice Ruth Bader Ginsberg was critical of the Court’s reasoning in Roe v. Wade.
The Constitution simply does not mention abortion, explicitly or implicitly. The Roe v. Wade Court instead invented the right to abortion by analogy to other Constitutional rights. Abortion was known and sometimes practiced at the time the Constitution was written, and the Founders could have provided for it there. They indisputably did not.
The conservative Justices can afford to lose one of their six, and still win a 5-4 decision to uphold the Mississippi law. The conservative Justice wavering most is Chief Justice Roberts. He is concerned about the Court’s status. That’s a good thing to be concerned about, especially for the Chief.
One last point, related to the point about the Supreme Court’s status as an institution. It has become politicized. We have ourselves to blame for that. It’s because the Justices have been tasked with too many issues involving too much politics which should have been deliberated in Congress and state legislatures but the politicians there were too cowardly to tackle the issues and the people were too lazy to make them.
That’s well illustrated by this abortion issue. It’s a vexing religious, philosophical and societal issue, but it’s not really a Constitutional one. It should have been left to the people’s representatives – state legislatures and Congress, as the Founders intended – and not to the courts.
The Supreme Court is not supposed to respond to popular political sentiment or even religious or philosophical sentiment. It’s supposed to apply the law. As a political institution, the Supreme Court is lousy by design.
But as a court of law, the Supreme Court is still great. The Justices are brilliant and accomplished jurists, though some more than others. The Court has been nearly free of scandal through two and a half centuries. In private practice, the Justices could make tenfold their government salaries. They choose instead to serve their country in a job that is fascinating but pays relatively poorly.
Listen to the audio of the oral arguments. I wish the other branches of government would be half as civil and smart as the Justices of the Supreme Court.