Charles Fried, now a professor of Constitutional Law at Harvard Law School, served as Solicitor-General of the United States, a Department of Justice sub-agency, or office, which functions as the law firm representing the United States of America when one of its laws or practices has been challenged as being unconstitutional in a lawsuit brought in a federal court. The Solicitor-General is the government lawyer who represents the United States before the U.S. Supreme Court. He may delegate some of the research, brief writing, and arguing to deputy Solicitors-General, but the brief is submitted over his signature, along with others. The S-G is appointed by the president, with approval by the Senate. Thurgood Marshall, the attorney who brought and won the cases known as Brown v. Board of Education of Topeka, Kansas, decided in 1954, the public school integration cases which changed a great deal of America, had been appointed to serve as U.S. Solicitor-General before being elevated to the Court. Archibald Cox, who led the Watergate prosecution of Pres. Richard M. Nixon until the Saturday Night Massacre got rid of him and several of the officials who refused the presidential order to fire him, had also served as Solicitor-General. The DOJ official who pulled the trigger on him, incindentally, was Robert Bork, who was himself "Borked" when his nomination to the high court came before the Senate.
The Solicitor-General, as a regular practitioner before the Supreme Court is thus a most knowledgeable, and cagey, practicing attorney, well attuned to the political realities behind the decision-making.
So I read with interest Charles Fried's take on the recent decision in Gonzales v. Carhart, which rolled back the Roe-Casey right of a woman to choose an abortion regardless of her health needs. Until now, the policy decision had been that if a pregnancy risked the life of the mother, the government was constitutionally dis-empowered from interfering with her decision to save her life at the expense of the fetus, no matter how far along in the pregnancy she was, up until the fetus was emerging from her body when it had its skull crushed, was dismembered, and thus killed. A gruesome business indeed. But the choice was held to belong to the mother, not the neighbors acting through government, or the government even if you leave out the argument that it is really the neighbors imposing their sensibilities and moral views. To the pregnant woman, it is her body and her life which are at stake, over which she should have ultimate control, not some government lawyer or agent.
In Stenberg v. Carhart, the Court held unconstitutional a state statute which prohited such late term abortions, because the statute failed to allow an exception for cases in which such procedures were necessary to save the life or health of the mother.
But then Congress passed a similar law, which also failed to provide an exception to save the life of the mother, but this time the Court, with two new members (Chief Justice John Roberts and Associate Justice Samuel Alito) replacing the late Chief Justice Rehnquist, and the retired Sandra Day O'Connor, said the new federal law, was constitutional.
Why the switch?
Abortion has been the most contested issue in the country since Roe v. Wade was decided legalizing abortion in 1973. Until then women sought out back-alley abortionists, went to Mexico, or killed themslves in great numbers while trying to end unwanted pregancies using septic tools found around the home that caused uncontrolled bleeding or infection. That all ended in 1973 as physicians were permitted to treat the procedure as a legitimate surgical operation in a clean, modern, hospital setting.
This upset the sense of morality of a sizable portion of the population, however, and has served as a political fracture and rallying point for raising millions upon millions of dollars to support anti-abortion candidates. This has forced pro-abortion forces to do likewise, and the result has been an ongoing civil war for over three decades.
In his Op-Ed in the NYT dated April 26, 2007, Prof. Fried provides an analysis of the new anti-abortion decision, the first cut-back of the Roe-Casey right (Roe instituted the constitutional right to privacy re: abortion, while Casey held it constitutional for a government to regulate abortion provided that it not impose an "undue burden" on the right.). But it's not just an analysis of this new decision; it's also a shot across the Court's bow about one of the next decisions about to be made, the one on election campaign money.
Fried seems to be saying that if the Court decides this new matter differently, or wrongly, than before, it is just playing politics, that it's decisions are not grounded in reason, but politics, just as its critics so-often maintain.
Well, duh. Constitutional law is politics, packaged in legal Christmas wrapping. Example: What was the Civil War all about? Preserving the Union? Freeing the slaves? Both? Neither?
Well, the North, which won, fought (a) to preserve the Union after eleven southern states walked out (seceded), and; (b) in the midst of the war, to free the slaves, thus giving the war a humane, ethical dimension that it had lacked. People who didn't care a whit about blacks could still fight for the Union, while those who hated slavery as an abomination could fight for both. After Lee's surrender of the South at Appomattox to U.S. Grant, how did the North consolidate its gains legally? With the South still absent from the Congress, the North, led by the Radical Republicans, the ones who strongly favored abolition of slavery, pushed through the Civil War Amendments, prohibiting slavery (the 13th), giving the former slaves the right to vote (the 15th), the men, anyway, as women in general were not yet allowed to vote, and the 14th, which put equal protection into law, not just Thomas Jefferson's inspiring Declaration of Independence rhetoric.
So, politics led to war, and war led to more politics, and the political gains were written into bedrock Constitutional Law which we continue to interpret and wrangle over through today and tomorrow.
It is thus a little short-sighted to criticize the Court for behaving politically when it is a politically staffed body, since each member of the Court must be nominated by the president and approved by the Senate in one (or two, or several) of the greatest political exercises in the nation. We know that if we elect a conservative president, we're going to be stuck with conservative justices for a long time to come, assuming s/he has some vacancies to fill. And like wise with less conservative presidents. It's worse, however, when the Court picks the president, as it did with George W. Bush in 2000 over Al Gore. For then the president picks the (conservative) nominees (Roberts and Alito) to fill the seats of the justices who picked him (Rehnquist and O'Connor).
Prof. Fried was making pretty good sense until he threw in his concluding thought, that the court should stick to, or enunciate better, legal principle before we think it is just another political animal. He seems to be saying that the wrapping paper is becoming a bit frayed at the corners and the cardboard box sticking through.
Pay no attention to the man behind the green curtain, boys and girls.
That cardboard box contains coal, I'm afraid.
The emboldening, below, is mine:
April 26, 2007
Op-Ed Contributor
Supreme Confusion
By CHARLES FRIED
Cambridge, Mass.
IN supporting John Roberts’s nomination to be chief justice of the United States in 2005, I spoke to the Senate Judiciary Committee of his commitment to clarity, consistency and stability in the law — qualities that included respect for precedent, essential if the Supreme Court is to be the guarantor of legality under the Constitution and not an unnecessary third political branch of government.
Senator Dianne Feinstein of California asked whether I thought a Justice Roberts would vote to overrule Roe v. Wade. I said I thought he would not, at least not in its later, less absolute version embodied in the 1992 Casey decision, which protected against governments imposing an “undue burden” on a woman’s right to choose abortion before the fetus’s viability. I told Senator Feinstein that the formulation, and the principles behind it, had become so deeply rooted — in the law relied on not only in abortion cases but by analogy in matters as widely disparate as the Texas homosexual sodomy case, compelled visiting rights for grandparents and the right to die — that its abandonment would produce the kind of violent unsettling of the law against which respect for precedent is meant to protect.
The next year, when I testified in support of Samuel Alito, Senator Feinstein asked me the same question. I gave the same answer.
Justice Anthony Kennedy’s decision for the court in the abortion case last week does not change my mind, because the procedure that was banned, intact dilation and extraction, is too rarely used and its importance too dubious to make much difference.
Still, this most recent decision is disturbing, because in 2000, in a similar case, the Supreme Court struck down a Nebraska partial birth abortion ban. The Nebraska law was unacceptably vague, but the principal reason for the court’s earlier decision was that there was responsible medical opinion that sometimes the procedure was less risky for the mother, and therefore in such cases the ban posed an undue burden. The federal ban cured the vagueness, but sought to overcome the medical testimony by a legislative proclamation of a fact that is not a fact: that the procedure was never safer for the mother.
The decision is disturbing because the court has on numerous occasions refused to allow Congress to overturn constitutional law by bogus fact finding, notably in decisions invalidating the Violence Against Women Act (which Justice Kennedy joined) and the Religious Freedom Restoration Act (which Justice Kennedy wrote).
It’s disturbing because Justice Kennedy fails to come to grips with his own jurisprudence, going so far as to say that because Congress was acting under its power to regulate interstate commerce, it needed only a rational basis to justify its decision. Where a fundamental right is involved, such an explanation is evidently wrong.
It’s also disturbing because Justice Kennedy was not quite willing to embrace his own conclusion. He suggested that perhaps as applied in a particular case in which there was an increased health risk the ban might be unconstitutional after all. What can that mean? The very complaint here was that the ban was unconstitutional because it applies in just such situations. Does the court contemplate a surgeon pausing in the midst of an operation in which he determines the banned procedure might be less risky, and seeking a court order?
Finally, the decision is disturbing for a more far-reaching reason: there are indeed cases where the court in the last few years had become truly incoherent, largely as a result of Justice O’Connor’s pragmatic and underexplained abandonment of positions she had earlier agreed to or even proclaimed on affirmative action and campaign finance. The first issue has been argued and will be decided this term of court; campaign finance is being argued this week.
If the justices eliminate the confusion and restore principle in those areas, the cry will go up that the court is simply reflecting its changed political complexion, not reasoning carefully and promoting stability and clarity in the law. And last week’s decision will lend plausibility to that charge.
Charles Fried, a law professor at Harvard, was the United States solicitor general from 1985 to 1989.
Copyright 2007 The New York Times Company
If the South walked out of congress how was any legitimate government business conducted?
Posted by: Richard Oboczky | October 28, 2007 at 07:04 AM