“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.” -- former US Attorney General, Edward Levy, An Introduction to Legal Reasoning, 1949 (the legal view expressed here, American legal realism, is now locked in a bitter fight against Christian nationalist legal theory that holds the Constitution and law to be frozen in time and Christian fundamentalists are the ones who know what the Constitution means, not the legal realists -- at present, the CN's fundamentalist biblical worldview dominates the US Supreme Court)
This case is important because it could be the one the radical CN judges decide to use to overturn Roe v. Wade (1973) and either (i) leave abortion rights up to the states, or (ii) mostly or completely eliminate the legality of abortions nationwide. This might be the moment that fundamentalist Christians have been fighting for beginning some time after the Roe decision. We will find out on or before June 30, 2022, the last day of the current Supreme Court term. Oral arguments in this case are scheduled for Dec. 1.
Attacking reliance interests
When the Supreme Court considers overturning a precedent, it can choose to consider if getting rid of the precedent, Roe in this case, would harm people by pulling the legal rug from under them as they acted in reliance on the precedent. Specifically, does a woman who gets unintentionally pregnant after consensual sex have any reliance interest in her right to an abortion if she chooses to abort the fetus? The CN legal argument is that Roe and a related case, Planned Parenthood v. Casey, (1992) show that there are no reliance interests at stake and thus the court can overturn Roe without harming anyone. The Casey case was decided in part on a court majority that argued there is a reliance interest. The amicus brief attacks the reliance interest argument like this:
In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 874 (1992), a plurality of justices doubled down on this court-invented right, while announcing a new and amorphous “undue burden” standard to judge the constitutionality of pre-viability restrictions on abortion. This fabrication atop a fabrication has proven to be non-falsifiable, as there is no way to determine when a “burden” crosses the line from “due” to “undue,” apart from a judge’s personal desire to see an abortion regulation enforced or thwarted.
In its attack on Casey, the CN brief addresses the issue that Casey court raised about abortion being needed for women to control their reproductive lives. The brief attacks this idea and coldly rejects it as nonsense:
The third problem is with the Casey plurality’s false assertion that women would no longer “control their reproductive lives” if Roe were to be overruled. See Casey, 505 U.S. at 856 (plurality opinion). Women can “control their reproductive lives” without access to abortion; they can do so by refraining from sexual intercourse. The only time abortion is needed to ensure women’s ability to “control their reproductive lives” is when a pregnancy results from non-consensual behavior as in cases of rape, or when a pregnancy is endangering her life.
So there you have it, a woman who gets pregnant after consensual sex and becomes pregnant with an unwanted fetus bears the responsibility for her choice. In CN legal thinking and religious morality, forcing a woman by law to carry a pregnancy to term and bear an unwanted child has no impact on her control of her reproductive life. There is not one shred of fundamentalist Christian understanding or empathy for the fact that a pregnancy might be unwanted or arise despite the proper or improper use of contraception by one or both parties.
As Christian fundamentalists see this, it is the woman's choice to have sex and bear the life-changing consequences of an unwanted pregnancy. She assumed the risk. God demands the law to be this way.
Court credibility
In what is circular reasoning, the brief also rejects the idea that if the court overturns Roe, the public will see that as a political decision, not a legal one:
Pro-abortion commentators have become fond of saying that the Court’s “institutional credibility” will be harmed if the Court overrules its lawless and unconstitutional ruling in Roe. But they never explain what, exactly, they mean by this. If their point is that overruling the court-invented right to abortion will engender criticism and opposition, they are surely correct. The editorial pages of the nation’s newspapers will be very unhappy if the Court overrules Roe. Pro-abortion politicians will denounce the Court. And pro-abortion law professors will circulate and sign letters bemoaning the Court’s decision.But why should anyone think that will hurt the Court’s institutional credibility? The Court’s institutional credibility comes from its demonstrated adherence to the Constitution and the laws—not from whether its decisions find approval from newspaper editorialists or the managerial class. There will always be cynics who view the Court as nothing more than a political institution, and those are the people who are pressuring the Court to retain Roe when they know full well that there is nothing in the Constitution that can possibly support the decision. Trying to preserve the Court’s “institutional credibility” with that audience is a fool’s errand. These are the legal realists who have given up on the idea of law and regard the judiciary as nothing but a tool through which they impose their preferred policies on the nation.
So there you have it, plain as day. People who see politics in a court decision dominated by radical right CN judges who were put on the court by having necessarily passed political litmus tests, specifically including intense CN antipathy to abortion rights and the Roe decision, are just a bunch of implacable cynics.
As we know, cynics usually act out of ill-will and bad faith. Those cynics include Democratic justices on the Supreme Court who might oppose overturning Roe. Obviously, all Democrats and other people who see politics in overturning or restricting Roe are cynics. Only righteous fundamentalist Christians and people agree with them can act in goodwill and good faith.
So, are are the legal realists the ones who have given up on the idea of law and regard the judiciary as nothing but a tool through which they impose their preferred policies on the nation, or is that mostly the domain of self-righteous CN radicalism? Notice that that reference to “legal realists” is a direct attack on American legal realism, discussed here in the 1949 book, An Introduction to Legal Reasoning.
Legal realism sees the law as changing with society and technology, in part because the law is so hard to change and in part because congress is inept in drafting laws[1] and in part because of some other things. In that book, one can see the seeds of conflict between the Constitution as a living document vs the Constitution as a frozen in time document, which modern CN legal reasoning relies heavily on. For the CN political movement, God is the arbiter of the meaning and scope of the frozen document and courts have nothing to do with it except to express God’s will.
In addition to its attack on abortion rights, the brief includes a blast at the 2015 Obergefell v. Hodges Supreme Court decision that held there was a right to marriage for same-sex couples.[2] The CN movement and its ideology are almost as hostile to same-sex marriage and the LGBQT community as it is to abortion, which it sees as murder. Same-sex marriage is merely an abomination in God’s eyes, but not murder.
Questions: Who are the cynics here, frozen in time CN radical fundamentalists or not frozen in time legal realists? Is most of the American public aware of the high stakes in legal battle between legal realism and Christian fundamentalist legal dogma, e.g., an authoritarian fundamentalist Biblical, White race-centric worldview and law vs. secularism, pluralism, civil liberties and democracy?
Footnotes:
1. Regarding congressional incompetence, this was by the radical right extremist Ben Sasse (R-NE), during the bitter Senate confirmation hearings for Brett Kavanaugh:
2. The brief includes this blast at same-sex marriage:
The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage. See Lawrence, 539 U.S. 558; Obergefell, 576 U.S. 644. These “rights,” like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence. Mississippi suggests that Obergefell could be defended by invoking the “fundamental right to marry” which is “ ‘fundamental as a matter of history and tradition.’ ” But a “fundamental right” must be defined with specificity before assessing whether that right is “deeply rooted in this Nation’s history and tradition.” See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (requiring federal courts to employ a “careful description” of conduct or behavior that a litigant alleges to be protected by the Constitution, and forbidding resort to generalizations and abstractions). Otherwise long-prohibited conduct can be made into a “fundamental right” that is “deeply rooted in this Nation’s history and tradition,” so long as a litigant is creative enough to define the “right” at a high enough level of abstraction. The right to marry an opposite-sex spouse is “deeply rooted in this Nation’s history and tradition”; the right to marry a same-sex spouse obviously is not.
This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe. (emphasis added)
Leave lawless same-sex marriage rights hanging by a thread. The CN legal strategy, just like its sacred ideology, is deeply anti-civil liberties, except for White Christians, especially males. That is just how God wants it. “Hanging by a thread” same-sex marriage rights is what the CN Supreme Court just might deliver sometime next June, along with its decision about Roe.
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