History of US Supreme Court Decisions and Roe vs. Wade
Dear Readers,
My friend, Rusty, to whose wisdom I have long listened, posted on Facebook the entire decision paper of the Supreme Court regarding the validity of Roe vs. Wade. Considering its effect on the American populace, it’s well worth reading. My comments are offered here. Please be advised that this will be a rather long treatise, so knowing this, proceed at your own pace and risk. Also, be advised that this paper does not comment on the wisdom of the Court’s decision to overturn Rose vs. Wade. Everyone must decide for themselves on this matter. This paper’s purpose is to help readers understand how the Court could change its mind on this important matter.
First, before beginning, I would recommend a book that addresses the issue of how our system of jurisprudence came to be. Entitled, Empire of Liberty, its author, Gordon S. Wood, outlined the early legal history of our nation. The issues he recorded in the first 50 years of our nation’s legal history can be seen again in Roe vs. Wade.
This decision drew heavily on the influences of common law and statutory law. As defined in Wikipedia, common law is:
In law, common law, also known as judicial precedent, judge-made law, or case law, is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.[2][3][4] The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in prior decision (a principle known as stare decisis).[1]
This type of law is differentiated from statutory law which is defined as: “… a law that is determined by legislation or a legislative branch. This is the official classification of a ‘statute.’” [2]
Since American law has been strongly influenced from colonial times by British law, these definitions are important to know. Later parts of this discussion will be referencing them. Specifically, British common law existed long before Parliament was organized. It governed the actions of everyone from the king on down. Daily lives were governed by it until Parliament came into being. Under it, statutory laws governing were added to the traditions of common law. An example of this was its development of real estate laws. Prior to the Black Death plagues, the common law mandated a person’s status on the basis of birth. Nobility was nobility and serfdom was serfdom for generations. But rampant deaths caused this principle to become ineffective. The laboring classes were decimated and created a scarcity of workers that increased their value to society. With Parliament’s passage of the Statutes of Laborers in 1351, a statutory law was enacted to manage this new situation. This legislation clearly surmounted the pre-existing common laws.[3]
At the time of the American Revolution, the Enlightenment Movement was in full force. Knowledge was gained through reason. Thinkers thought the British mixture of common and statutory law was a confusing muddle. Rational thinking they thought could legislate laws of such precision that jurisprudence had only to access them for all legal issues. In effect, they envisioned a decision-tree logic.[4] As the post-Revolutionary War time passed, such thinking was seen as a wishful. Common law and its principle of stare decisis came to be accepted again as a necessary and valid part of American law.[5] Since that time, a conflict has festered between the effects of statutory law as ultimately exemplified by the Constitution and its interpretation by the influences of common law. This conflict can be seen full force in the Supreme Court’s decision to invalidate Roe vs. Wage.
It is ironic that the Republican Party, which has been the traditional party of business, is now often seen as wanting the Constitution narrowly interpreted. Such is the bias of the Republican appointed justices seen in the Roe case. In early America, business proponents led by Alexander Hamilton saw strong banking systems as the vehicle to advance America’s industrial strength, wanted just the reverse or an expansive interpretation of the Constitution. Thomas Jefferson, a proponent of traditional agricultural values and who hated banks, urged a narrow interpretation that would have fenced in the activities of banks that he saw as antithetical to the interests of yeoman farmers. His party ultimately became the Democratic Party of today that advocates a liberal vision for the Constitution.[6]
The importance of this divide between Hamilton and Jefferson is how people have since seen judicial roles as expansive or restrictive. How the court would move was determined by the men appointed to the Supreme Court. Washington, for example, nominated men of an expansionist “federalist” persuasion as exemplified by his secretary of treasury, Alexander Hamilton.[7] Franklin Roosevelt, 140 years later, confronting the conservatism of a Supreme Court that thwarted his progressive ideas for economic recovery in the face of the Great Depression, wanted to expand its membership and dilute the power of “Nine Old Men.”[8]
What does this short history lesson say? It says that the laws that govern our nation are enacted and interpreted by men who have conflicting ideas that are rendered presumably in good faith. Former Chief Justice Charles Evans Hughes stated it well in 1907 when he declared, “The Constitution is what we say it is.” Then, as these solons define it, all citizens are expected to abide by it until further review changes a standing interpretation. This obligation stems back to an ancient common law that emerged from the Magna Carta, which was an agreement between the Crown and the land’s nobility stating that the king, too, much live under the law and rule in accordance with it.[9] Thus, enabled by the political choices made by President Trump for replacement justices, the Court’s current majority rule through a narrow vision of the Constitution.
In their denunciation of Roe vs. Wade, they relied heavily on the Constitution’s silence of on abortion and the plethora of legal history by the states forbidding abortion. Thus, they were not lying or contriving. Rather, they were exercising their duties as they saw them when weighing the facts in the case. Whether the public would like their decision was not their concern. Their lifetime tenure removes them from the passions of the electorate. This makes the Supreme Court justices free to issue rulings based on their interpretation of our nation’s laws, rather than political favor. Noted legal scholar, Michael Meltsner, said,
“That was put into the Constitution to preserve the total independence of the judiciary… Once a justice is confirmed and takes a seat on the court, they’re not beholden to anybody… This makes Supreme Court justices free to issue rulings based on the law, rather than political favor.[10]
This independence can be seen how these same conservative justices decided against the assertions of President Trump that the 2020 presidential election was stolen from him. Had they been merely political hacks, such would not have occurred.
Does their decision invalidating a constitutional rule about abortion spell the end of the controversy? Not hardly. For example, the current Republican candidate for Pennsylvania governor, Doug Mastriano, is an unequivocal foe of abortion…even in cases where a mother’s life is in danger.[11] Now, this is definitely a stage for conflict between statutory law and common law. If his stance were enacted by statute, a pregnant woman in danger for her life would have no choice but to accept a possibly inevitable death. This violates the ancient common law of self-defense. As a retired career soldier, Mr. Mastriano would understand the right of a soldier to act in self defense against a foe. Likewise, police and civilians have the right to self-defense against any “clear and present danger.” Why can’t a woman facing a clear and present danger by the person growing inside her have the right to self-defense? Such a question would certainly attract the attention of the Supreme Court and possibly offer an exception to their existing ruling. Other .
Finally, the Supreme Court does and has reversed itself, which makes further review of Roe vs. Wade possible. A classic example is their decision in “Brown vs.The Topeka Board of Education.” In it, the old standard of “separate but equal” was denounced when Chief Justice Earl Warren opined that “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”[12] This decision overturned a standard that that had been in effect since 1896 when the Supreme Court upheld segregation in the Plessy vs. Ferguson case.[13] This change was due to Thurgood Marshall’s argument that the sciences of sociology and psychology indicated that segregation inherently engendered an unequal learning environment. As the court stated in their 9 to 0 decision, “To separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.” Thus, it seems possible that Roe vs. Wade might be revisited at a later time when scientific evidence dictates a change.
Meanwhile the arguments will continue at the state level. The overturning of Roe vs. Wade essentially remanded the issue back to the state level because its decision essentially said that a federal level affirmation of abortion was unconstitutional under the Constitution. Here, the arguments presented before the Supreme Court will be re-argued before state courts. But, if the doctrine of self-defense were presented, it could boomerang the issue back to the Supreme Court. That is, under the separation of powers clause of the 10th Amendment, Pennsylvania could state that since Roe vs. Wade had been remanded back to the states, it had the power to legislate any abortion doctrine it wished. Thus, the common law of self-defense contradicting a state law could become a national, or federal issue on abortion.
This discussion was intended to show how the current justices could legitimately overturn Roe vs. Wade despite strong public sentiments to the contrary. However, this discussion would not be complete without a cautionary note to conservatives who advocate a literal “black letter” interpretation of the Constitution. Be careful what you wish for… A complete insistence on literal interpretations of the Constitution could result in unintended consequences. For example, Indian tribes west of the Mississippi could conceivably try to argue before the Court for a separation of their lands from the territory held by the United States in 1783 at the end of the Revolutionary War. Specifically, the Constitution is silent about acquisition of new territories. Indeed, Jefferson, the stalwart of a restrictive Constitution, doubted his right to buy the Louisiana Territory from France. An amendment to the Constitution would have clearly cleared this hurdle, but he was afraid that the bargain basement deal for the purchase would fall through. Thus, he found himself expediently adopting an expansive interpretation of the Constitution.[14] Under these circumstances, the Indian tribes might argue that since France had no clear title of purchase for the land from the indigenous peoples living there they couldn’t sell what it didn’t legally own. For the US government operating under a rigid Constitution, it had no express authority to buy it. In sum, between the two parties lack of legal basis to transact the contract, the purchase on its face was illegal. Consequently, the lands should be returned to their proper owners. This case would really tie the Supreme Court justices into knots and create a maelstrom of protest that would make Roe vs. Wade seem mild. So, again, be careful what you wish for…you might get it.
[1] “Common Law.” Wikipedia. https://en.wikipedia.org/wiki/Common_law. 6/26/22.
[2] “What Is Statutory Law?” Study.com. https://study.com/learn/lesson/statutory-law-overview-purpose-creation.html. 6/26/22.
[3] Senn, Mark A. English Life and Law in the Time of the Black Death. Page 574. https://www.jstor.org/stable/20785740. 6/26/22.
[4] Wood, Gordon S. Empire of Liberty. New York, NY: Oxford Press. 2009. Page 403.
[5] Ibid. Page 405.
[6] Chernow, Ron. Alexander Hamilton. Kindle Reader. Location 8152.
[7] Op Cit. Wood. Page 412.
[8] Halabi, Gina. “Roosevelt Versus Nine Old Men.” U.S. History Scene. https://ushistoryscene.com/article/fdr-v-supreme-court/. 6/27/22.
[9] Magna Carta. Wikipedia. https://en.wikipedia.org/wiki/Magna_Carta. 6/27/22.
[10] Callahan, Molly. “Why Do the Supreme Court Justices Have Lifetime Appointments?” News at Northeastern. https://news.northeastern.edu/2018/09/21/why-do-supreme-court-justices-have-lifetime-appointments/. 6/27/22.
[11] “Where PA’s 2022 Candidates for Governor and Senate Stand on Abortion?” Philadelphia Enquirer. https://www.inquirer.com/politics/election/abortion-pennsylvania-candidates-2022-midterm-governor-mastriano-fetterman-shapiro-oz-20220624.html. 6/27/22.
[12] Greenhalgh, Max. “Thurgood Marshal and Brown v. Topeka Board of Education..” https://www.historicamerica.org/journal/2021/5/18/2bn3bmvuyicx25gpi2fetg1lmykgma. 6/28/2022.
[13] “Plessy vs. Ferguson. Britannica. https://www.britannica.com/event/Plessy-v-Ferguson-1896. 6/27/22.
[14] Kelly, Martin. “Thomas Jefferson and the Louisiana Purchase.” Thought Company. 6/27/22.