Speaking at a conference of about five hundred mostly judges and lawyers in July, Justice Elena Kagan said that the Supreme Court’s legitimacy is threatened when long-standing precedent is discarded, and the Court’s actions are seen as motivated by personnel changes among the justices.  She also said that people are rightly suspicious if a justice leaves the court or dies, and another justice takes his or her place and “all of the sudden” the law changes.  Justice Kagan made clear that she was not talking about “any particular decision” or “any particular series of decisions,” but it’s difficult to believe that she did not have the recent Hobbs v. Jackson Women’s Health Organization (Hobbs) case, which overturned the central holding in Roe v. Wade (Roe) and Planned Parenthood v. Casey (Casey), in mind.

On the point that the Court’s legitimacy is threatened when long-standing precedent is discarded, Kagan may have a point, however, this is why the Court should decide a case correctly in the first place.  Roe was based on a preferred policy outcome, not the Constitution; the word abortion does not appear, nor is it referred to, in the Constitution, therefore, the Court should not have ruled on the case in 1973.

When a Supreme Court decision is not based on the Constitution or federal statute, the decision will be inherently unstable, because the losing side will inevitably feel cheated and will not accept the outcome, especially on a sensitive matter like abortion.  When the outcome of an important case is not accepted by a sizable portion of the public, the outcome is vulnerable to challenges.

Roe was challenged by Casey in 1992.  Casey partly overruled Roe (in its rationale) but affirmed Roe in its central holding that there was a federal constitutionally protected right to an abortion.  By the year 2022, the protected right to an abortion had been in place for 49 years.  Anyone born after 1960, which is about 80% of the public, grew up in Roe v. Wade America.  These Americans did not live in or were aware of a time when abortion was not universally legal.  The Hobbs decision would appear stunningly cruel to anyone who believes in legalized abortion and felt that, for the most part, it was a settled legal matter.

This Court in 1973 and 1992 issued opinions where abortion was a right protected, not by the Constitution, but by lawyers in black robes.  The Constitution, even with its amendments, is an enduring and stable document.  Members of the Court, however, come and go over time.  When “rights” are protected by lawyers in black robes, it invites a situation like Hobbs, where the legal correction can come years after the initial ruling, causing societal shock.  It is better to have Supreme Court rulings that are rooted in the text of the Constitution rather than the philosophical leanings of lawyers in black robes.

The half-century controversy over this issue is due to the handy work of Weak Republicans.  The Roe opinion had seven Court members in the majority, with two in dissent.

In the majority were:

• Chief Justice Warren Burger (Republican) nominated by President Nixon (Republican)
• Justice William O. Douglas (Democrat) nominated by President F. Roosevelt (Democrat)
• Justice William Brennan (Democrat) nominated by President Eisenhower (Republican)
• Justice Potter Stewart (Republican) nominated by President Eisenhower (Republican)
• Justice Thurgood Marshall (Democrat) nominated by President L. Johnson (Democrat)
• Justice Harry Blackmun (Republican) nominated by President Nixon (Republican)
• Justice Lewis Powell (Democrat) nominated by President Nixon (Republican)

In dissent were:

• Justice Byron White (Democrat) nominated by President Kennedy (Democrat)
• Justice William Rehnquist (Republican) nominated by President Nixon (Republican)

Six of the nine justices in 1973 were nominated by Republican presidents.  Four of the six were Republicans themselves.  Three of the four were in the Roe majority.  One of the three, Blackmun, authored the opinion.

Had Burger, Stewart, and Blackmun rejected the notion that the right to an abortion is rooted in privacy, a word that is nowhere to be found in the Constitution and had the three not signed onto a trimester scheme as to when the government had an interest in regulating abortion, which is legislating, not judging, the decision would have been five-to-four to uphold the Texas law.  Had this happened, each of the fifty state legislatures would have produced abortion laws that would have reflected the will of the people in those states.  Unfortunately, because of weakness, whether intellectual or political, this did not happen.

The Casey opinion had five Court members in the majority, with four in dissent.

In the majority were:

• Justice Harry Blackmun (Republican) nominated by President Nixon (Republican)
• Justice John Paul Stevens (Republican) nominated by President Ford (Republican)
• Justice Sandra Day O’Connor (Republican) nominated by President Reagan (Republican)
• Justice Anthony Kennedy (Republican) nominated by President Reagan (Republican)
• Justice David Souter (Republican) nominated by President George Bush (Republican)

In dissent were:

• Chief Justice William Rehnquist (Republican) nominated by President Reagan (Republican)
• Justice Byron White (Democrat) nominated by President Kennedy (Democrat)
• Justice Antonin Scalia (Republican) nominated by President Reagan (Republican)
• Justice Clarence Thomas (Republican) nominated by President George Bush (Republican)

Eight of the nine justices in 1992 were nominated by Republican presidents.  All eight were Republicans themselves.  Five of the eight were in the Casey majority.  Three of the five, O’Connor, Kennedy, and Souter, authored the joint opinion.

Five Weak Republican violated their oaths by rejecting the Constitution they swore to support and defend.

From the joint and concurring opinions, it appears that the five justices, particularly Blackmun and Stevens, believe in legalized abortion as a policy matter, which shows that their weakness is their inability to sign onto an opinion with which they do not personally agree.  Also, it is not a surprise that Blackmun voted as he did since was the author of Roe.

We have seen untended consequences of rulings by Weak Republicans in other cases.

With O’Connor, we saw her weakness in the 2003 affirmative action case, Grutter v. Bollinger.  She wrote the majority opinion in that case where she announced that there was a diversity exception to the Fourteenth Amendment.  The ruling effective says that a university may engage in race discrimination in its admission policy, so long as it is the good kind of race discrimination.  It was a constitutional lie, and she knew it was a constitutional lie.  She was too weak to allow the chips fall they may in university admissions because she feared that elite schools, not having a “critical mass” of black Americans, would make the schools (and, perhaps, America) look bad.  Because of this ruling, our country is now obsessed with racial diversity in nearly every walk of life.

With Kennedy, we saw his weakness in the 2015 same-sex marriage case, Obergefell v. Hodges.  He wrote the majority opinion where he announced that a state that will not formally recognize same-sex unions violates the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment.  I am certain that no politician in the 1860s who voted to propose or voted to ratify the Fourteenth Amendment would have thought that the amendment was odds with a state refusing to recognize same-sex marriage.  This ruling was a constitutional lie, and he knew it was a constitutional lie.  He was too weak to do the right thing because he was looking for a legacy for himself.  Because of this ruling, our nation is obsessed with gender identity and teaching same-sex sexual conduct to young children in schools.

When Weak Republicans on the Supreme Court make mischief, the nation pays the price.

We are now in the year 2022.  It has been 49 years since Roe and 30 years since Casey affirmed Roe.   Given the length of time that has elapsed, one could reasonably ask, why not just let the half-century precedent stand?  We look to history for the answer.

An American president in 1863 began a speech with the following words,

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition at all men are created equal.

and ended the speech with

. . . and that government of the people, by the people, for the people shall not perish from the earth.

President Lincoln in his Gettysburg Address reminded the crowd that this nation, founded in 1776, would be one that is a republic, where all men, rich or poor, would be equal under the law, and that we would have representative government, which would reflect the will of the citizens.  Lincoln saw the American Civil War as the ultimate test as to whether such a nation could endure.  To Lincoln, winning the war was essential, not just to restore the Union or to abolish American slavery, but to ensure that the experiment in self-governance would not perish from the earth.  After four years and over 500,000 casualties (both sides), the war was won.  The nation would endure.

If the nine unelected lawyers on the Supreme Court are permitted to govern the country as policy makers, we are no longer a self-governing nation.  This would be the death of the American idea.

It is for this reason that the Supreme Court made the correct decision in overturning the central holding in Roe and in Casey.