Talking ‘Smack’ to SCOTUS on Roe v. Wade?

Jul 30, 2021 by David Fowler

Talking ‘Smack’ to SCOTUS on Roe v. Wade?
Eighty briefs were filed with the United States Supreme Court by pro-life organizations and persons in support of Mississippi’s constitutional authority to ban all elective abortions after 15 weeks. My name went on one of those briefs as its author. A lawyer friend and colleague whose state organization joined on that brief said, “This theory is brilliant…Florida will sign on to the brief.” Brilliant or, as another friend of mine says, “evil genius”? You decide.


My Friend the ‘Evil Genius’

Brilliant, maybe, but a dear policy friend of 27 years, who knows how my mind works when it comes to developing legislation to address perceived legal roadblocks, often laughingly introduces me to legislators and others as “an evil genius.”
I’ll leave her to explain the full content of what she means, but one thing I have a penchant for doing is using the “other side’s” words against them. I admit I derive no small amount of satisfaction when an “opponent” has to eat his or her own words and recant, or is left bumbling around for a reason why he or she didn’t mean what clearly was said.  
I know pride surely lurks there, and so my friend’s adjective is deserved; I’m working on that, but I laid it aside in writing the brief.


Hoisting the Court by Its Own Petard- Part I

In the very opening “summary of the argument” contained in the brief, I use what the majority wrote in Planned Parenthood v. Casey against the Court’s current members:
The Court’s abortion decisions in their various constructions of the Fourteenth Amendment’s Due Process Clause contradict the principle that the Court elsewhere has articulated, namely, that “[o]ur Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession.” Planned Parenthood v. Casey, 505 U.S. 833, 901 (1992). Indeed, in recent decades the Court has “retreat[ed] from interpreting the full meaning of the covenant in light of all of [its] precedents.” Id.

A vital part of our constitutional covenant is the Ninth Amendment.
The retreat is the Court’s failure to give due consideration to the Ninth Amendment, an actual part of the covenant. The Court said its duty is to interpret the covenant’s “full meaning,” but it cannot do that when it leaves out of its consideration a careful analysis of an entire provision in the Bill of Rights.
To my way of thinking, ignoring what is written in plain language and right in front of you is a gross form of “retreat.”


Hoisting the Court by Its Own Petard- Part II

Being on a roll, I didn’t stop there. I then used the words from the Court’s most treasured decision, Marbury v. Madison (1803), against the justices.
In Marbury, the Court reviewed various provisions of the Constitution to arrive at the conclusion that it has the power to review acts of Congress to determine if they are within Congress’ power. In the course of this review, the Court said, “It cannot be presumed that any clause in the constitution is intended to be without effect.”
I said, “Thank you very much,” and the next sentence in the brief is as follows:
Because it “cannot be presumed that any clause in the constitution is intended to be without effect,” Marbury v. Madison, 5 U.S. 137, 174 (1803), the Ninth Amendment’s implication for judicial construction of Fourteenth Amendment rights must be taken into account.
Using the Court’s words against it in the summary, before one even begins the full argument, would be a lawyer’s version of an athlete “talking smack” before the game.


Conclusion—What If the Argument Is Ignored?

I don’t know what the Court will do with the Ninth Amendment argument; they may pretend it wasn’t made. After all, the 22 state policy organizations on whose behalf the brief was submitted are not parties before the Court, only “friends-of-the-court” by virtue of the brief. But here are two consolations.

First, if the majority ignores the argument because it was not made by Mississippi, I am praying that Justice Thomas, who regularly says the Court’s abortion precedents are wrong, will use it to “talk smack” in a dissenting opinion against any justice who votes to uphold Roe. If so, it will legitimize the argument for use the next time around.

Second, and speaking of the next time, Governor Lee listened to my pleas about the Ninth Amendment enough to reference it in the abortion legislation he got passed. That law is now sitting, enjoined, at the Sixth Circuit Court of Appeals. But what the governor did means the state can use this Ninth Amendment to defend that law once the appellate court remands the case to the District Court for further proceedings.

If Tennessee’s attorney general does this, then Tennessee will have put the majority of the Court in the position of having to address this Ninth Amendment argument, and, based on that Amendment, the claim that the fundamental right to life was “retained by the people,” and that under the Tenth Amendment, they have right to have their representatives secure that right for all human beings in the state.

Limiting our arguments to only part of the covenant that is our Constitution—"playing nice”—hasn’t worked for 48 years. In my view, it is time to talk a little smack to the Court for the sake of protecting the right to life that belongs to all human beings, born and unborn. After all, there is a bit of “evil genius” in me.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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