Response to Op-Ed ‘Illegitimate Institution’

The following article is a response to an Op-Ed titled The Supreme Court: An Illegitimate Institution by Yomar Aguilar published in the Holtville Tribune and Calexico Chronicle.

In the May 5, 2022, opinion piece published in this paper titled The Supreme Court: An Illegitimate Institution, the author made several assertions that I wish to challenge – beginning with his claim that the U.S. Supreme Court (SCOTUS) is an “illegitimate institution.” However, before I do, I wish to congratulate Mr. Aguilar on his upcoming graduation from Imperial Valley College and wish him all the best in his efforts to pursue a B.A. in political science. I am sure that I would have enjoyed having him as a student in my US Government class.

The Supreme Court is not an illegitimate institution insofar as it fulfills its duty to faithfully interpret the U.S. Constitution within the context and spirit in which it was authored. Today’s Court consists of nine highly qualified justices; each of whom is an experienced jurist selected, vetted, and appointed by a President of the United States, and confirmed by majority vote of the United States Senate. Unlike the other two branches of government, the Judicial Branch is not to be swayed by political winds. Rather, the Court as established by the Constitution, is supposed to be insulated from political pressures. For this reason, Supreme Court justices (and federal judges) serve life terms. Justices owe fealty to the Constitution, and nothing else.

The Supreme Court decision making process is methodical, deliberative, and rooted in a tradition of confidentiality. Justices hear Constitutional arguments from litigants, question counsel representing both sides, and then meet privately to discuss the case. In these intimate meetings each justice, in turn, has a chance to speak freely. Justices then cast a vote and a justice or justices are chosen to write the majority opinion. Justices in the minority write dissenting opinions which are attached to the ruling. This is a process that typically takes months. At any point in the process before a decision is officially released, a justice can change their vote. Procedural confidentiality allows the justices to base their discussions and eventual decisions strictly on interpretation of the Constitution – free from political pressures. For this reason, the leak of Justice Alito’s opinion is especially egregious as it was obviously intended to intimidate justices who may have sided with Alito into changing their vote via the ensuing political backlash that the leaker knew it would certainly unleash.

The fallout from this illegal act is both dangerous and irresponsible. Since the leak, far left extremists have threatened the lives of SCOTUS justices (the Alito family had to be moved to a safe location) and firebombed a pro-life organization. Mobs of angry protestors have gathered on the front lawns of some justices, vandalized churches, and disrupted religious services nationwide. This, in addition to members of Congress vociferously calling for court packing legislation.

It remains to be seen whether the scare tactics now being brought to bear on the majority in this case will cause a justice to change his or her decision. If it does, it will not be the first time. Usually, such occurrences do not become headline news, the exception being high profile cases on hot button issues. Such appears to have been the case in NFIB v. Sebelius (2012) which upheld the individual mandate in the Affordable Care Act. Chief Justice Roberts is reported to have initially sided with the conservatives on the court, only to change position and join liberal justices after relentless high profile pressure from the media and the Obama administration. In 1937, under pressure from FDR and facing the threat of court packing legislation if they did not deliver the ruling Roosevelt wanted, two justices deviated from years of their own personal precedents in the Jones & Laughlin Steel case and granted the federal government sweeping powers not enumerated in the Constitution.

To suggest that the Court is bound by Stare Decisis, the doctrine of legal precedent under which a court is bound by previous rulings when the same points arise again in litigation, is folly. If that were the case, Plessy v. Ferguson (1896), which declared Jim Crow segregation laws constitutional, would not have been overturned by Brown v. Board of Education (1954). Following this line of thinking, the Court would have looked to Plessy as a precedent and ruled that segregation in public school was constitutional in the Brown case.

All Supreme Court nominees in recent history have addressed the issue of Stare Decisis during Senate confirmation hearings. No nominee, from the left or right, has gone on record and declared categorically that all previous SCOTUS rulings are binding or settled. In Justice Kagan’s 2010 confirmation hearing Senator Cornyn (R-TX), asked her if the Supreme Court ruling in McDonald v. City of Chicago, in which the Court ruled that individuals have a right to keep and bear arms, “has full stare decisis effect.” Kagan replied only that the ruling is “entitled to all the weight that precedent usually gets.” In his hearing, Senator Kennedy (D-MA) asked Justice Scalia: “Well, what weight do you give the precedents of the Supreme Court? Are they given any weight? Are they given some weight? Are they given a lot of weight?” Scalia explained, “It depends on the nature of the precedent, the nature of the issue.”

In other words, justices reserve the right to overrule past decisions. Such appears to be the case in Dobbs v. Jackson Women’s Health Organization, if in fact, Justice Alito’s decision becomes the majority opinion. On page five of the sixty-five-page leaked document Alito explains:

We hold that Roe v. Wade must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty.”

The right to abortion does not fall into this category. Until the latter part of the 20th century, such a right was entirely unknown to American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

Basically put, the majority seeks to overturn the Roe and Casey decisions because they were predicated on a nonexistent “right” neither enumerated nor implied in the Constitution, which previous justices contrived themselves in a clear case of judicial activism. In those cases, the Judicial Branch assumed legislative powers and codified the right to abortion. This was a violation of both Stare Decisis and the basic Constitutional principle of separation of powers. An objective reading of the Roe decision is enough to make this clear; the 1973 Court was so hard pressed to find a legal precedent to justify its decision that it cited ancient Greek and Roman philosophers, Judeo-Christian texts, and British law. Indeed, the summary of the Roe decision reads like legislation passed by Congress, not a SCOTUS decision; it legalized all abortion procedures in the first trimester of pregnancy, allowed states to regulate abortion in the second trimester “in ways that are reasonably related to maternal health,” and allowed states to ban abortion in the third trimester except in cases of preservation of the life of the mother.

So, what does it mean if the leaked Alito decision stands? It will signify a turn toward federalism, or the Constitutional division of power to govern between the federal and state governments. The Framers of the Constitution granted the federal government specific, limited powers with clear parameters. The states retained all other powers not enumerated. Contrary to the passionate emotional clamor from both the left and the right, if it stands, this decision does not signify the abolition of abortion. Rather, the issue will be in the hands of the states. Some states will restrict abortion while others will preserve it. Ultimately, it is up to the people via their elected representatives to decide how to proceed through the established legislative process – as Justice Alito explained on page sixty-five of his decision: “We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”