Opinion: From the Right: Politicization of the Supreme Court


From the Right: Politicization of the Supreme Court

by Don Schmitz 

Roe v. Wade (RvW), pro-choice/pro-life — the divide is deep, passionate, and strikes at core morals for both sides. Most will not be swayed, and you will never persuade them to disengage the Constitutional relevancy from the galvanized topic. 

Regardless, that is the critical question before the Supreme Court (SCOTUS), not what the polls show, nor which party is in power. 

Without question, there are valid arguments that RvW was an improper ruling (Justice Ruth Bader Ginsburg, a liberal icon, thought it flawed), just as there are valid arguments it was correct. Entire books, treatises, and courses are dedicated to the subject, and that is beyond this scope. What fascinates me and alarms mainstream Americans, is the lengths the left is willing to pursue to sway the deliberations of the court. 

It is appropriate that SCOTUS reverses bad precedent when appropriate. Dred Scott v. Sanford (1857) held that Black Americans couldn’t be citizens, upending the Missouri Compromise, and made the Civil War all but inevitable. Plessy v. Ferguson (1896), separate but equal, allowed Jim Crow discrimination until that precedent was overturned in Brown v. the Board of Education (1954). Bowers v. Hardwick (1986) upheld Georgia’s criminalization of homosexuality, ultimately overturned in Lawrence v Texas (2003). Precedent is important, but SCOTUS can and should reexamine, always with the Constitution as the guide. Should RvW be overturned, it will not be unprecedented. 

SCOTUS doesn’t make law, it provides judicial review of laws passed by Congress or the states, scrutinizing their constitutionality. The legislature(s) derive their power from the one polling that matters, elections. It is to be expected that as public opinion evolves on topics, elected representatives will come to power and pass laws that reflect the majority, which is as it should be. However, SCOTUS is empowered to ensure that the swings in the electorate could never trammel on inalienable rights of the individuals. 

Tocqueville, the French diplomat and political writer stated, “The power vested in the American courts of justice of pronouncing a statute to be unconstitutional forms one of the most powerful barriers that have ever been devised against the tyranny of political assemblies.” 

So imagine how dangerous this trend of intimidating the court is to our republic. Radical pro-choice activists “Ruth Sent Us” posted the home addresses of justices online, whereupon demonstrators threatened to burn down their homes, which is illegal under 18 U.S.C ss 1507, which prohibits the picketing or parading outside of a residence occupied by any judge, juror, witness or court officer with the intent of influencing the discharge of his duty. 

Shockingly, the Biden administration supported these actions, Press Secretary Jen Psaki , “we certainly continue to encourage that (protests) outside of judges’ homes, and that’s the president’s position”. 

The tone was set at the highest levels when Senate Leader Chuck Schumer threatened Justices Neil Gorsuch and Brett Kavanaugh they “won’t know what hit them” should they revisit RvW. Chief Justice John Roberts responded in a rare public rebuke, stating, “Statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All members of the Court will continue to do their job, without fear or favor, from whatever quarter.” 

I certainly hope so, but the trend in America is horrifying. A summer of anarchy where Antifa burned and murdered in cities nationwide, and the defiling of our Capitol by Trump supporters in the Jan. 6 riots, has debased our society and its most venerable institutions. 

The criminal leak of the draft opinion in and of itself is a dagger pointed at the heart of the court. The court’s ruling would of course become public eventually anyway; accordingly, the leak of the document was obviously a craven maneuver to ignite a firestorm of political pressure against the justices before they formalized their ruling. Think on that: The entire purpose of the crime was to insert politics and fear into the deliberations of SCOTUS to sway their ruling, and apparently many on the left, and much of their political infrastructure, are only too happy to participate in that intimidation. SCOTUS is the one coequal branch of our government that must be immune to elections and public opinion, and if we lose that, we lose the integrity of the Constitution itself. 

Some will respond that the stakes are so high the ends justify the means. I imagine there are people on both sides of the abortion issue that believe that, hence the violence, firebombs, and hateful rhetoric for any non-believer. They are wrong. We have elections, we pass laws, and we can even amend the Constitution itself. An amendment to the Constitution, either pro-choice or pro-life, future SCOTUS would be required to defend and protect, just as we expect that of them now. I choose the rule of law, and reject the clamor of the mob, no matter how impassioned.