Politics as Usual at the High Court

As promised (threatened?), I have a few further comments about yesterday’s 5 to 4 Supreme Court decision in Gonzalez v. Carhart (and its simultaneously decided companion case, Gonzalez v. Planned Parenthood, hereafter collectively "Carhart").

Those interested in instant analysis from a more lawyerly perspective might do well to start with both SCOTUSblog and The Volokh Conspiracy. My quick read of the over seventy pages of the majority decision and dissent is that in purely practical terms Carhart accomplishes next to nothing for those who seek to restrict or prohibit abortions.

However, as Justice Ginsburg noted in her dissent, “[f]or the first time since Roe, the Court blesses a prohibition with no exception protecting a woman's health." Well, “blesses” is a bit strong, but the fact remains that since Roe and prior to today’s ruling, any attempted restriction on abortion that carried with it even the arguable possibility that such restriction might endanger the health of a woman seeking an abortion has failed to withstand challenge before the Court. In that sense, Carhart is a significant political victory for abortion opponents and setback for abortion rights defenders. How long lasting that victory or defeat may be or whether it amounts to anything more than a symbolic gesture remains to be seen.

It is worth remembering that in principle the ethics of abortion, like the ethics of any issue, is a separate matter from the proper role of the Supreme Court in determining what legal rights and liberties do or do not follow from the U.S. Constitution and therefore restrict or permit the (overtly) political branches of government to affect those rights and liberties. Thus, for example, while I might (and do) oppose abortion in general and also believe that Roe v. Wade and the Court's abortion cases since Roe have been bad decisions as a matter of law, I might (and do) also believe that while Griswold v. Connecticut was a bad decision as a matter of law and in some of its subsequent applications (especially Roe), a Constitutional right of privacy broader than the sort of privacy expressly protected in the actual text of the Constitution is a wonderful idea and that it should, by Amendment, be a part of the text of the Constitution.

I am aware that there are those who would disagree as a matter of legal philosophy with the first sentence of that last paragraph. Indeed, I am personally inclined to take the view myself that, at bottom, law like war is merely politics through other means. That is in fact the prevailing view amongst contemporary intellectuals, and perhaps understandably so. Perhaps the notion of law as being something above or apart from politics was always doomed once the notion of positive law of any sort being rooted in divine or at least natural law gave way to our prevailing jurisprudence of legal realism and critical legal studies.

Perhaps it follows from this that the Supreme Court should abandon its almost farcical pretense that its decisions on privacy and abortion (and any number of other matters) are possessed of some sort of consistent application of principles and some sort of unifying logic in that application. One need merely read the dissents in many of those typically split decisions to go a long way toward disabusing oneself of such notions. Indeed, I think, one would have to have the finely developed cognitive dissonance found primarily among Constitutional scholars and Supreme Court justices themselves to come to any other conclusion, and that is as true of Carhart as it is of its many "precedent" decisions.