Barrett, Breyer, and Baloney: SCOTUS, Court Packing, and Roe v. Wade
Sep 17, 2021 by David Fowler
“Barrett, Breyer, and Baloney” is not the name of a law firm that practices before the U.S. Supreme Court. Rather it is a description of my reaction to comments made this week by two Justices—one liberal, the other conservative (perhaps)—about the cries of liberals to expand the number of Justices on the Court (“court packing”). Of course, those cries intensified after the Court refused to intervene to prevent Texas’ abortion statute from going into effect. The Court created its own mess.
Justice Breyer’s response this week to the call for Supreme Court packing was, “[I]t seems to me you start changing all these things around and people will lose trust in the court." Later in the week, Justice Barrett told an audience that “this court is not comprised of a bunch of partisan hacks.”
Of course, all observers of the Court know that Chief Justice Roberts is concerned about the public’s perception of the Court, that it not be viewed as results-oriented or composed of a bunch of partisan hacks.
It was the concern to preserve public trust in the Court that led Justice Kennedy in 1992 to switch his vote from reversing Roe v. Wade to reaffirming its “central holding” in Planned Parenthood v. Casey.
That switch, and the rational given for it, is why those who understand the Constitution call the Justices' bluster about trust and credibility so much “baloney.”
In Casey, the Court utterly undermined its legitimacy with the following justification for upholding Roe.
Notice that the majority in Casey breached their oath of office to uphold the U.S. Constitution by substituting its “holding” for the words and phrases in the Constitution and the framer’s intent behind them.
Think I’m wrong, then find the words “holding” and "court" in the Supremacy Clause, set forth in Article VI, Clause 2 of the Constitution (Spoiler: You won’t find them.):
In other words, the Court was loyal to itself—its prior holding—not its oath to uphold the Constitution, which is the “supreme Law of the Land.”
As I wrote last week, those who understand the judiciary’s limited role know that a holding is not even law! A Supreme Court holding is nothing more than the basis for its judgment in favor of one party in the courtroom over another party in the courtroom, not a law, which is a rule of action that applies to all people.
All but the lawyers for abortionists know that Roe had nothing to do with the text of the Constitution or its original meaning, and Casey compounded the problem by choosing to focus on Roe’s words, again avoiding those in the Constitution.
The Court in Casey was more interested in creating a perception of credibility by not admitting it messed up in Roe than in doing its job. Now it will be hard for a majority of the Court to do its job in the Dobbs abortion case from Mississippi that will be decided next summer.
By refusing in Casey to admit its prior mistake in Roe and by exalting its holdings over the Constitution’s text in high profile cases like abortion, the Court has created an expectation on behalf of those whose trust it needs—politicians and the public—that its holdings are law.
Here is the problem the Court has created: Since we seem to know that courts don’t make law and are only supposed to be applying the law already in existence to particular parties, the Court, by equating its holdings with the law of the Constitution has made for itself a bed in which reversing Roe will look like it is changing the Constitution, which we know it can’t do without an amendment.
To return the Court to is constitutionally limited function and stop making up unenumerated rights under the guise of “interpretation” is going to be painful. The decision in Dobbs will let us know if the Court is beyond repair. [i]
The Justices have made their own bed of problems, and now they are scrambling to avoid having more Justices added to their bed by Democratic politicians.
I hope the Justices, particularly Justice Roberts, sleep well at night knowing they have made a mess of the Court and the Constitution.
[1]Supreme Court Justice Samuel Alito, in dissenting from the Court’s decision on same-sex “marriage, Obergefell v. Hodges, 135 S. Ct. 2584, 2643 (2015), wrote, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
Justice Breyer’s response this week to the call for Supreme Court packing was, “[I]t seems to me you start changing all these things around and people will lose trust in the court." Later in the week, Justice Barrett told an audience that “this court is not comprised of a bunch of partisan hacks.”
Of course, all observers of the Court know that Chief Justice Roberts is concerned about the public’s perception of the Court, that it not be viewed as results-oriented or composed of a bunch of partisan hacks.
It was the concern to preserve public trust in the Court that led Justice Kennedy in 1992 to switch his vote from reversing Roe v. Wade to reaffirming its “central holding” in Planned Parenthood v. Casey.
That switch, and the rational given for it, is why those who understand the Constitution call the Justices' bluster about trust and credibility so much “baloney.”
The Court Undermines Its Legitimacy
In Casey, the Court utterly undermined its legitimacy with the following justification for upholding Roe.
Our analysis would not be complete, however, without explaining why overruling Roe's central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. …
[T]he Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands. (emphasis supplied)
[T]he Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands. (emphasis supplied)
Breaching Their Oath of Office
Notice that the majority in Casey breached their oath of office to uphold the U.S. Constitution by substituting its “holding” for the words and phrases in the Constitution and the framer’s intent behind them.
Think I’m wrong, then find the words “holding” and "court" in the Supremacy Clause, set forth in Article VI, Clause 2 of the Constitution (Spoiler: You won’t find them.):
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.
In other words, the Court was loyal to itself—its prior holding—not its oath to uphold the Constitution, which is the “supreme Law of the Land.”
As I wrote last week, those who understand the judiciary’s limited role know that a holding is not even law! A Supreme Court holding is nothing more than the basis for its judgment in favor of one party in the courtroom over another party in the courtroom, not a law, which is a rule of action that applies to all people.
Having Made the Bed in Which They Now Lie.
All but the lawyers for abortionists know that Roe had nothing to do with the text of the Constitution or its original meaning, and Casey compounded the problem by choosing to focus on Roe’s words, again avoiding those in the Constitution.
The Court in Casey was more interested in creating a perception of credibility by not admitting it messed up in Roe than in doing its job. Now it will be hard for a majority of the Court to do its job in the Dobbs abortion case from Mississippi that will be decided next summer.
By refusing in Casey to admit its prior mistake in Roe and by exalting its holdings over the Constitution’s text in high profile cases like abortion, the Court has created an expectation on behalf of those whose trust it needs—politicians and the public—that its holdings are law.
Here is the problem the Court has created: Since we seem to know that courts don’t make law and are only supposed to be applying the law already in existence to particular parties, the Court, by equating its holdings with the law of the Constitution has made for itself a bed in which reversing Roe will look like it is changing the Constitution, which we know it can’t do without an amendment.
To return the Court to is constitutionally limited function and stop making up unenumerated rights under the guise of “interpretation” is going to be painful. The decision in Dobbs will let us know if the Court is beyond repair. [i]
Conclusion
The Justices have made their own bed of problems, and now they are scrambling to avoid having more Justices added to their bed by Democratic politicians.
I hope the Justices, particularly Justice Roberts, sleep well at night knowing they have made a mess of the Court and the Constitution.
[1]Supreme Court Justice Samuel Alito, in dissenting from the Court’s decision on same-sex “marriage, Obergefell v. Hodges, 135 S. Ct. 2584, 2643 (2015), wrote, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
