What Exactly Did You Expect?

I’ve discussed this to some extent in the past, but ever since the leaking of Justice Sam Alito’s draft opinion I’ve been trying to get my thoughts organized for this moment.

I’m really not interested in debating abortion itself. If there’s an issue in this country where every single person has made up their mind and will not be persuaded it’s abortion. It’s called one of the “third rails” of politics for a reason.

I’m a systems architect. I design and build systems. I test them, I anticipate possible flaws and I try to address them before they happen. I also build in the ability to make adjustments and corrections seamlessly without having to rebuild the system from scratch.

The United States Constitution is a system. And its architecture is brilliant. But the Founders did not properly plan for the Supreme Court to flex its way into a position of supremacy over the other two branches. And they most certainly did not expect judicial activism.

The “Civil War Amendments” were drafted and ratified as a strong correction to the slavery practice in America. The 13th outlawed slavery outright. The 15th specifically granted franchise to all citizens (and ironically left out women which needed to be corrected by the 19th Amendment).

And then there’s the 14th Amendment. If you tried to pack more broad-reaching language into a law you’d be hard-pressed. It addressed all the flaws in the Constitution that allowed or tolerated slavery as an institution. It established that any person born in the US is a citizen, it asserted that all citizens are entitled to equal protection of the laws, it enshrined due process, it corrected the controversial “3/5ths clause” by making sure that all citizens had equal representation in Congress, it forbade members of the Confederate army or their enablers from participating in the Federal government, and finally it asserted that the US would not honor any debts owed by the Confederacy prior to or during the Civil War.

It’s a sweeping amendment with strong restorative impact. And it’s the most abused Amendment in the Constitution since it was ratified.

For example, birthright citizenship has been used to re-shape immigration. And the Equal Protection clause was cleverly levered to bring about gay marriage as a protected right. And very recently the insurrection clause is being used to try to declare Republican politicians as being ineligible to serve.

Each of these examples are beyond the intended scope of the authors of the amendment. And yet as time passed the courts have relied on these clauses to advance social change. And none moreso than the Due Process clause.

The 60s were a time of social upheaval, and the courts were caught between the strong gravitational pull of traditional america and the unquestioned counter-revolution that was taking place in their homes and schools and churches. The role specifically of women in both society and in the family was being put under severe strain.

A series of cases were brought to the Court to erode away state restrictions on women who were trying to avoid pregnancy. Starting with Griswold v. Connecticut and continuing to Eisenstadt v. Baird and finally Roe v. Wade itself. Each case dragged the Court further and further into the quicksand of an implicit “Right to Privacy” in the Constitution and concreted their reliance on substantive due process to protect that right.

And although it didn’t stop with Roe, that certainly was the milestone. Once it was achieved the notion of implied rights took hold in jurisprudence and has ever since.

As time has passed Justices have come and gone many times and their replacements have all had to endure the inquisition of their adherence to precedent and their commitment to “settled law.” That is, that prior decisions by prior Courts should endure forever unless and until the Congress sees fit to change the law.

And this brings us back to our system flaw. It was only a matter of time before a Court considered rejecting precedent as part of their activism. And that they’d feel unencumbered by the chains of past decisions.

And the result? If you rely on flimsy precedent for a specific outcome you make yourself vulnerable to some future court overturning such precedent.

So, I simply ask, what did you expect would happen? It was always a matter of time.

The only way to install permanence in the law is through the legislatures. Write laws. Ratify amendments. Get it done through elected representatives. Nothing else will last.