A New York Time opinion piece discusses some of the oral arguments that the Republican Christian nationalist judges were making last week as they reasoned their way to their forgone conclusion about gutting abortion rights, probably overturning the 1973
Roe v. Wade decision in the process. They need a rationale to rely on to make their decision look like gutting abortion rights isn't political.
A couple of key concepts about how courts decide cases helps with understanding what is going on here.
Sorry for the length and complexity of this. This post just got away from me because I wanted to try to be very clear about how Republican Christian nationalism is working in the Supreme Court.
Holding vs. dictum
In a court decision, the decision about the law is called the holding. Sometimes a court just states the holding without calling it the holding. The holding in the Roe case is exceptionally long, but it includes this:
Held: . . . . .
3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a 'compelling' point at various stages of the woman's approach to term.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (this is the viability standard that a later Supreme Court decision relied on and that the Republicans on the court desperately want to see overturned)
(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. (note the exemption, "except where necessary" . . . .)
At the end of its decision, the Roe court added a sentence that reads, "To summarize and to repeat:" and then repeats part of 3 and all of (a), (b) and (c) from the holding. I do not recall any other Supreme Case that summarized and repeated parts of the holding. At the least, this was unusual.
The other things that cases usually contain is
dicta, sometimes a lot of it. By contrast with a holding, a dictum is not binding law.
One law source defines dicta like this:
A remark, statement, or observation of a judge that is not a necessary part of the legal reasoning needed to reach the decision in a case. Although dictum may be cited in a legal argument, it is not binding as legal precedent, meaning that other courts are not required to accept it.
Parts 3, 3(a), 3(b) and 3(c) of the holding protecting the right to an abortion until fetal viability, which in 1973 was at the end of the second trimester;
the first trimester ends at week 12 and the second trimester ends at week 26;
now fetuses at age 21 weeks can sometimes be saved outside the womb, maybe marking the current line for viability
Legal rationalization based on facts first,
decision second based on the law & facts
The rule of law is supposed to work in the US by a two-step process. Analysis of the facts and law goes first, and then the legal decision gets expressed in the holding. When judges are political, incompetent and/or ignorant of the law, they decide first and then work backward to build a legal rational that supports the decision they wanted to get right from the get go. Obviously, this turns the role of law from something intended to be at least semi-objective into something mostly or completely subjective. The law can be completely political when judges are motivated to be political, especially when there is complexity and/or ambiguity at play.
Complexity and ambiguity are the playgrounds of political judges. They afford all the flexibility needed to get the pre-ordained decisions they want, while still pretending to be neutral.
As discussed here before, the US Supreme Court court operates in secrecy to generate their decisions "for obvious reasons." No judge has ever articulated the obvious reasons. The reasons appear to be either a national security or state secret or non-existent. For decades,
legal observers have been criticizing the court [1] for deciding cases first and then working backward to the legal reasoning. That is the "obvious reasons" the US Supreme Court demands the decision-making process is cloaked in secrecy.
The NYT opinion piece
There are many reasons for dismay over the Supreme Court argument in the Mississippi abortion case, but it was the nonstop gaslighting that really got to me.
First there was Justice Clarence Thomas, pretending by his questions actually to be interested in how the Constitution might be interpreted to provide for the right to abortion, a right he has denounced and schemed to overturn since professing to the Senate Judiciary Committee 30 years ago that he never even thought about the matter.
Then there was Chief Justice John Roberts, mischaracterizing an internal memo that Justice Harry Blackmun wrote to his colleagues as the Roe v. Wade majority was discussing how best to structure the opinion Justice Blackmun was working on. The chief justice was trying to delegitimize the place of fetal viability in the court’s abortion jurisprudence, where for nearly 50 years, viability has been the unbreached firewall protecting the right of a woman to choose to terminate a pregnancy.
“It’s an unfortunate source, but it’s there,” he said, referring to Justice Blackmun’s papers, on file and open to the public at the Library of Congress. “In his papers, Justice Blackmun said that the viability line was — actually was dicta.”
“Dicta” is a dismissive word that refers to asides in an opinion that are not actually part of the court’s holding. The entry in the Blackmun papers to which the chief justice was most likely referring was a memo of Nov. 21, 1972 that the author of Roe v. Wade sent along with a new draft opinion to the other justices, noting: “In its present form it contains dictum but I suspect that in this area some dictum is indicated and not to be avoided.”
In that memo, of course referring to what was still a work in progress, Justice Blackmun proposed that the right to abortion be fully protected only until the end of the first trimester of pregnancy. “This is arbitrary,” he wrote, “but perhaps any other selected point, such as quickening or viability, is equally arbitrary.”
But two weeks later, after consulting with other justices, including Lewis Powell and Thurgood Marshall, Justice Blackmun circulated another memo endorsing the viability line. Far from describing this determination as arbitrary, he wrote in a memo dated Dec. 11, 1972, that viability “has logical and biological justifications,” namely, that “few could argue, or would argue, that a state’s interest by the time of viability, when independent life is presumably possible, is not sufficiently developed to justify appropriate regulation.”
In other words, by the time the court issued the final opinion in January 1973, viability was not dicta but rather an essential element of the decision. Chief Justice Roberts may not like viability — as clearly he doesn’t, observing to Julie Rikelman, the lawyer for the Mississippi clinic challenging the state’s ban on abortion after 15 weeks of pregnancy, that “viability, it seems to me, doesn’t have anything to do with choice” — but he was flatly wrong to suggest that it was an unconsidered aspect of Roe v. Wade.
In fact, as the second Blackmun memo makes clear, the court that decided Roe saw a direct link between the viability line and a woman’s ability to choose abortion. In that second memo, Justice Blackmun referred to the “practical aspect” of the viability line, observing that “there are many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed.”
And then there was Justice Brett Kavanaugh, who rattled off a list of “the most consequential cases in this court’s history” that resulted from overruling prior decisions. If the court had adhered, for example, to the separate-but-equal doctrine of Plessy v. Ferguson rather than overruling that precedent in Brown v. Board of Education “the country would be a much different place,” he told Ms. Rikelman. “I assume you agree with most, if not all, the cases I listed there, where the court overruled the precedent,” Justice Kavanaugh continued. Why then, he asked, should the court stick with a case it now regarded as wrongly decided?
More gaslighting: The superficial plausibility of Justice Kavanaugh’s analogy between Plessy v. Ferguson and Roe v. Wade dissolves with a second’s contemplation. For one thing, Plessy negated individual liberty, while Roe expanded it. For another, Justice Kavanaugh’s list could have been 1,000 cases long without casting any light on whether today’s Supreme Court should repudiate Roe v. Wade.
But the justice’s goal was not to invite contemplation. It was to normalize the deeply abnormal scene playing out in the courtroom. President Donald Trump vowed to end the right to abortion, and the three justices he put on the court — Neil Gorsuch, to a seat that was not legitimately Mr. Trump’s to fill; Amy Coney Barrett, whose election-eve nomination and confirmation broke long settled norms; and Justice Kavanaugh — appear determined to do just that.
Question: Is the NYT opinion piece merely, unjustified, over-the-top partisan whining about how the Republicans on the court are going about their business? In other words, are the Christian nationalists on the court, i.e., the Republicans, looking for ways to gut abortion rights while searching for a legal rational to do exactly what they were put on the court to do?
Footnote:
1. That 1973 article comments:
Our thesis may be simply stated: basic democratic theory requires that there be knowledge not only of who governs but of how policy decisions are made. Only if it can be demonstrated that certain other fundamental Values are jeopardized or transgressed should secrecy continue to be the norm. We maintain that the secrecy which pervades Congress, the executive branch and the courts is itself the enemy.
A third reason for the failure of an opinion to depict the process may be found in the probability that judges work back from conclusions to principles rather than "forward" from principles to conclusions. Jerome Frank once said that this conception of the judicial process is so heretical that it seldom finds expression." The "so-called opinions," he explained, will not reveal anything remotely resembling a statement of the actual judging process because decision takes place by an intuitive flash rather than conscious application of formal logic of ratiocination. This intuitive approach to decision making, by nature and definition, precludes full explanation of the decision-maker's experience, for it is not made up of "little bricks of sight, sound, taste, and touch."
Having made bland assertions that secrecy is absolutely essential for the performance of their tasks, the Justices have not offered a cogent explanation of the reason for the essentiality. Justice Tom Clark maintained that without absolute secrecy, decisions would become prematurely known and "the whole process of decision destroyed." But this does not explain why maintenance of secrecy must be continued after the decision is taken or why judges suffer from "judicial lockjaw. ' Justice W. J. Brennan states that the conferences are carried out in "absolute secrecy" for "obvious reasons" and avoids any further elucidation of the matter. These assertions suggest that there is in the secrecy of the Supreme Court something of a semi-holy arcanum, something untouchable on which the very efficiency of the Court's functioning depends. It is the validity of that notion that is challenged in this article.
