Russell and Duenes

Reasoned Judgment

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Before leaving Casey behind, I’d like to simply reproduce and make a few comments on some of Justice Scalia’s ideas in his dissenting opinion. Justice Scalia properly lays waste the majority opinion’s claim to be using “reasoned judgment.” He writes:

“‘Reasoned judgment’ does not begin by begging the question, as Roe and subsequent cases unquestionably did by assuming that what the State is protecting is the mere ‘potentiality of human life.’ The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life (emphasis his). Thus, whatever answer Roe came up with after conducting its ‘balancing’ is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human.”

Justice Scalia shows, at some level, that he understands the vital question when it comes to abortion: What is the unborn? The Court in Roe never answered the question, but obviously treated the the unborn as though they aren’t entitled to life if the mother decides they aren’t. One would think that if the answer were uncertain, wisdom would dictate erring on the side of caution.

Scalia stumbles, however, in his next sentence, where he says that, whether the unborn is “a human life” or merely potential life “is in fact a value judgment.” On the contrary, it’s never been a “value judgment,” and Scalia’s assertion is even more egregious today, when modern embryology, genetics, and ultrasound have shown that the unborn are human beings from conception, with everything contained within them necessary to mature into adult human beings. Further, the unborn are full human beings, created in the image of God, headed for an eternal destiny, And this is not a “value judgment” simply because it comes from the Bible. It is moral and spiritual knowledge, which all of us have, but which we suppress in our blindness and rebellion against Christ. I gather that Justice Scalia would not say that the statement, “It’s wrong to torture babies by stabbing them in the eyes with forks” is a “value judgment.” But if he thinks it’s wrong to torture babies, how does he know this? Science, by itself, surely cannot make this judgment. So Scalia is correct legally, but wrong morally and spiritually, when he says that “[t]he States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.” This is the same as saying, “The States may, if they wish, permit infanticide…”

Justice Scalia is “distressed…about the ‘political pressure’ directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions.” But why? He’s distressed by it because he believes that the Court is not to “fiddle with” the text of the Constitution and “our tradition” when making rulings. Well enough, but the Court is also not supposed to ignore “the laws of nature and of nature’s God” when making rulings, and Scalia’s belief that the States can ignore God’s laws is a great failing.

Scalia is at his finest, however, when laying bare the arrogance of the members of the Court who wrote and agreed with the opinion in Casey. The majority said that they could not overrule Roe because “to overrule under fire…would subvert the Court’s legitimacy.” The Court said that even those who disagreed with Roe should submit themselves to the Court and follow it, and that “to all those who will be…tested by following, the Court implicitly undertakes to remain steadfast.” Finally, the Court cast itself as a tribunal “invested with the authority to decide [the American people’s] constitutional cases and speak before all others for their constitutional ideals.” To this, Scalia replied:

     The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges—leading a Volk who will be “tested by following,” and whose very “belief in themselves” is mystically bound up in their “understanding” of a Court that “speak[s] before all others for their constitutional ideals”—with the somewhat more modest role envisioned for these lawyers by the Founders. “The judiciary … has … no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment….” The Federalist No. 78, pp. 393–394 (G. Wills ed. 1982). Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration (“There is a limit to the amount of error that can plausibly be imputed to prior Courts,”), with the more democratic views of a more humble man: “[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, … the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101–10, p. 139 (1989).
     It is particularly difficult, in the circumstances of the present decision, to sit still for the Court’s lengthy lecture upon the virtues of “constancy,” of “remain[ing] steadfast,” of adhering to “principle.” Among the five Justices who purportedly adhere to Roe, at most three agree upon the principle that constitutes adherence (the joint opinion’s “undue burden” standard)—and that principle is inconsistent with Roe. To make matters worse, two of the three, in order thus to remain steadfast, had to abandon previously stated positions. It is beyond me how the Court expects these accommodations to be accepted “as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.” The only principle the Court “adheres” to, it seems to me, is the principle that the Court must be seen as standing by Roe. That is not a principle of law (which is what I thought the Court was talking about), but a principle of Realpolitik—and a wrong one at that.
     [T]he notion that the Court must adhere to a decision for as long as the decision faces “great opposition” and the Court is “under fire” acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be “tested by following” must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change—to show how little they intimidate us.
Scalia is almost Churchillian in his denunciation of the Court and its pretensions. And at this hour in our nation’s history, one could wish for more of it from other quarters. From whence shall it come? I’m not sure. Of course, these are not the only words, and Scalia’s is not the only tone, that must be conveyed as we engage the issue of abortion. Many soft and comforting words must be spoken as well, for we are dealing with human pain and death, and with forgiveness and redemption. But I am grateful to see such moments of clarity, such force of words to blow away the fog of moral timidity and pride. I would hope to help more young people see the issue with such clarity, whatever else I may do.

Written by Michael Duenes

July 26, 2012 at 4:24 pm

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