Are More Constitutional Rights at Risk After SCOTUS Overturns Roe with Dobbs?

Abortion, Politics, Religion and Ideology

Roe v. Wade; Dobbs v. Jackson Women’s Health Organization

Artist's rendering of abortion rights protest at US Supreme Court
The first three Articles of its Constitution established the three branches of government of the United States. The first (and most detailed) Article created the Congress; the second created the executive branch and the third Article created the judicial branch.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Article III. Section 1. U.S. Constitution

Of these three Articles, political influence is implied in the first and second, but not the third. Section 2 of Article I begins, “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States …” Article II vests the power of the executive branch in a president, and calls for the election of the president and vice president every four years. Article III, on the other hand, does not require the election of federal judges, nor does it arbitrarily limit their terms. This, coupled with a prohibition against diminishing the compensation of judges, presumably limits political influence on the judiciary, allowing the Judicial Branch to function independently, but also co-equally, with the other two branches of government.

By the summer of 2022 the Supreme Court of the United States, following the appointment of three conservative justices by Donald Trump, was more right leaning than it had been in generations. Justice Samuel Alito long disliked Roe v. Wade, viewing it as a flawed opinion stemming from his broader criticism of substantive due process – a concept that allows courts to protect certain fundamental rights from government interference, even when a specific protection is not directly mentioned in the U.S. Constitution. Justice Clarence Thomas took this sentiment a step further, opining that more rights should be taken away during subsequent Court terms. These two votes, combined with three from the new justices appointed by Donald Trump (who each variously stated during their Senate confirmation hearings that they respected precedent and were not necessarily seeking to overturn Roe v. Wade) served to overturn Roe v. Wade and, in so doing, withdrew federal protection for a woman’s right to choose.

The SCOTUS’ hard right turn following Trump’s presidency begs the question, to what degree is the judicial branch insulated from U.S. politics? Donald Trump might have erroneously thought that he could control the judiciary by appointing judges who would be loyal to him, undermining the concept that the Judicial Branch is a separate but co-equal branch of government. With one possible exception, that plan has not worked very well for him. Yet there is, and probably should be, some noticeable connection emanating from the will of the people and evolving needs of their society, to the decisions reached by their courts. Falling far short of one politician’s apparent desire to directly control the judiciary, most people likely perceive or would be open to considering that politics subtly influences the outcomes of cases that broadly affect individual rights, such as those heard by the U.S. Supreme Court.

But, how does one measure “subtly?” In this author’s opinion the influence is slight, but present, akin to the moon’s gravitation pull on the oceans of the Earth. That said, a new allegation of a leaked Supreme Court opinion has surfaced. This one pertains to Burwell v. Hobby Lobby. According to investigative reporting, that decision was leaked to anti-abortion leaders in 2014, pre-dating the 2022 leak of Dobbs by 8 years and further tarnishing the Supreme Court’s reputation by raising the question, is the Court being influenced by special interests? Although there is no convenient answer to these questions, we each have the right to form our own opinion (at least for now). Please continue reading this and the companion article, Substantive Due Process.

“I had planned to speak about our strategy for improving care for pregnant women and mothers across our country. And as you know, on the way here, however, we learned that the United States Supreme Court had rendered its decision in Dobbs v. Jackson Women’s Health Organization.” Vice President Kamala Harris on June 24, 2022, speaking about the Supreme Court Decision to Overturn Roe V. Wade.

“This opinion also says, when you read it, that abortion is not deeply rooted in our nation’s history. … In holding that it is not deeply rooted in our history, today’s decision on that theory, then, calls into question other rights that we thought were settled, such as the right to use birth control, the right to same-sex marriage, the right to interracial marriage.”

How can a Fundamental Constitutional Right be Taken Away?

The U.S. Supreme Court is made up of nine justices, each of whom was appointed by a president, and whose appointment was confirmed by the Senate. In each case accepted for review by the Court, the justices vote for the competing point of view they prefer, which is expressed as an opinion written by one of them. The opinion getting the most votes is called the majority opinion; the losing one is called the dissenting opinion. The Dobbs vote was 5 to 4, meaning that Roe was overturned, and a fundamental right was taken away, by a single vote.

In March 2016, Senate Majority Leader Mitch McConnell tried to justify denying a vote on Obama’s nomination of DC Circuit Court Judge Merrick Garland to replace Justice Antonin Scalia: “All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.” There is no such tradition. McConnell’s fabricated history to justify a 2020 Supreme Court vote, September 24, 2020.

“Trump, the nation’s 45th president, worked closely with Majority Leader Mitch McConnell and other Senate Republicans to reshape the federal judiciary – particularly the appeals courts. … The three Supreme Court justices he appointed – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – are the most by any president since Ronald Reagan.” See How Trump compares with other recent presidents in appointing federal judges, by John Gramlich, January 13, 2021.

Had President Obama and the American voters who elected him not been denied confirmation of Merrick Garland by the GOP during the last year of the Obama presidency, the U.S. Supreme Court would have been less unbalanced than it had become by the spring of 2022. By then, with one-third of the justices being conservative appointees of Donald Trump, right leaning justices felt – and were – empowered to re-shape fundamental rights that American citizens formerly took for granted. Justice Clarence Thomas signaled as much in the opinion he wrote in Dobbs. In two other opinions released the same week as Dobbs, the Court struck down New York state restrictions pertaining to carrying concealed weapons and removed some of the protection provided by Miranda v. Arizona.

“Today, I invite all people to stand together in defense of one of the most fundamental ideals and principles that for generations, for centuries, I believe, we have held dear, which is that fundamental principle about the importance of liberty — to stand for liberty, to stand for freedom, to stand for self-determination, and for the right to privacy.”

Vote 2022 mid-term elections

Voters Influence the Composition of the SCOTUS

It takes a left-of-center president and Senate majority to appoint and confirm a liberal Supreme Court justice. In real terms, what this means is, voters will have to keep Democrats in the White House and Senate if America wants to re-balance its Supreme Court. The loss of individual freedoms at the hands of GOP appointees in 2022 is unprecedented. Now, rather than grieving what’s in the rear view mirror, voters concerned about what this strongly conservative Supreme Court will do next should turn their attention to the next election.

After having made the decision based on a reading of a document that was frozen in time in the 1860s when women didn’t even have the right to vote, the court now practically dares the women of America to go to the ballot box and restore the very rights they’ve just taken away.

President Joe Biden, July 8, 2022

Justice Thomas has already written that more rights – individual freedoms – should be taken away. Justice Alito’s conservative view is that the Court should only consider what was expressly written into the Constitution (in other words, run a modern world with old laws that can’t be updated). The 2021-2022 term saw Republican-appointed justices rolling back individual rights, choosing religious doctrine over individual freedoms in a country founded on freedom and separation of church and state. You just can’t get more ideological and extreme right than that, with potentially more to come in subsequent terms.

… with the addition of Barrett, of whom Republican Sen. Lindsey Graham declared during her confirmation hearing: “This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her (Roman Catholic) faith without apology.

https://www.cnn.com/2022/07/26/politics/supreme-court-john-roberts-abortion-dobbs/index.html

“I can tell you that on the street, what you hear is a bubbling, seething cauldron of anger at the Republican Party for putting in these antediluvian judges who think they can take us back to the 18th century,” said Jay Inslee, the Democratic governor of Washington state. “My spidey sense and the polling indicate it’s going to help people decide not to vote for the red team.”

Commenting about Republican plans to ban abortion nationwide, Biden pledged, “Let me tell you something. As long as I’m president, it won’t happen because I’ll veto it. So the choice is clear: If you want to change the circumstance for women and even little girls in this country, please go out and vote.”