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Editor’s Note: The following is adapted from Republican Utah Senator Mike Lee’s new book. SAVING NINE: The fight against the left’s audacious plan to pack the Supreme Court and destroy American freedom, published by Center Street.
Roe vs. Wade was decided when I was only 17 months old. I knew what that meant for most of my life. When I was about 10, my father sat me down and explained the decision to me. I reacted by telling him that this seemed doubly problematic, because abortion policy should be a matter of state rather than federal law, be decided by legislatures rather than judges. My father was a genuinely happy person – a person with a wide range of interests and boundless intellectual curiosity – but he seemed particularly pleased with this response.
Living with a bad precedent like deer and Family planning c. Casey – which basically confirmed deer‘s central holding – for so long has been daunting, and at times the thought of it ever being overthrown seemed quite remote. It’s particularly frustrating because if I, at 10, could see that the deer decision had shaky legal foundations, surely many other people could too. And many have. In fact, many who liked the outcome of this case admitted that it was, in the immortal and ever-familiar words of Judge Antonin Scalia, “a bad opinion.”
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Even Ruth Bader Ginsburg was concerned about how, in a single “stunning” opinion, decided by a very small group of people, the Supreme Court crafted “a set of rules that superseded virtually all state laws then in effect. “. She, like all good Supreme Court justices, knew that “doctrinal limbs were built too quickly,” to use the words of her 1993 lecture on deer“may prove unstable.”
Of course, there’s nothing wrong with overriding a bad decision. The Supreme Court has done this many times throughout its history, notably in Brown v. Board of Educationwho considered that the Court had been completely mistaken in ruling in Plessy v. Ferguson that “separate but equal” was perfectly fine as long as facilities for blacks and whites were comparable.
In Dobbs v. Jackson Women’s Health Organizationthe state of Mississippi asked the Supreme Court to take the rare step of reversing two of its most public and controversial decisions: deer and Casey. The Biden administration has argued that these precedents must stand. But under the same objections the administration was raising in that case, the Warren court would have been stuck with Plessy on the grounds that it was a law that had been established for too long.
Judge Samuel Alito intervened on this point during the pleadings, referring to the Plessy case and ask Solicitor General Elizabeth Prelogar – representing the Biden administration – if there are … circumstances in which a decision can be overturned, properly overturned, when it should be overturned simply because it was manifestly erroneous at the time it was decided? ”
Judge Sonia Sotomayor, for her part, used the oral arguments to launch into a speech about how a reversal of Roe vs. Wade would make the Supreme Court “political”, wondering aloud if the Court would “ever survive the stench” of hearing the Dobbs Case.
A few months later, we became aware of the Court’s draft opinion due to an unprecedented leak, which was itself an attack on the integrity of the Supreme Court. The draft, written by Justice Alito, used the same language he had used in the pleadings. “deer was patently wrong from the start,” he wrote in his argument to overturn precedent. We don’t yet know if Judge Alito’s masterfully written draft opinion will reflect the Court’s final decision. I know my opinion on the subject, of course, and that’s it. Roe vs. Wade was badly decided and that it should be canceled as soon as possible. I know exactly how I would decide if I were a member of the Court. But I am not.
Today, the American justice system sometimes works imperfectly, but overall it works exceptionally well. The Dobbs the case was heard by nine judges who were sworn to properly adjudicate the case. The decision of the Court — whatever it is, whatever it is and whether I like it or not — will stand. If pro-life Americans like me don’t like the decision, I’m sure we’ll be disappointed, but then let’s get back to strategizing like we’ve been doing for years to find ways to protect the unborn child. without undermining our justice system as a whole. But if the pro-abortion left doesn’t like the decision, we could soon find ourselves in the middle of a constitutional crisis.
The stage is set for an invasion of the Supreme Court. There is money pouring in from progressive organizations everywhere. These organizations are pressuring Democratic lawmakers to attack the justice system. Their stated goal is to increase the size of the Supreme Court from nine to thirteen or more. From that moment on, public opinion was against them. But they are well aware that if they can convince enough Americans that the Supreme Court has acquired, in the words of Justice Sonia Sotomayor, the “stench” of politics, they may be able to convince enough that this crazy idea is a good one.
Right now, the Biden administration is using the threat of court packing much the same way President Franklin Roosevelt did in 1937, when he threatened to add more justices. to prevent the Court from ruling against his leftist New Deal agenda. Roosevelt’s plan didn’t work, but the threat eventually caused the Court to give him the decision he wanted. Today, Biden must know that the American people would almost certainly oppose any legislation he or members of his party might propose to pack the court. But he also knows that the judges themselves don’t want it to go that far. Several of them, including Liberal Justice Stephen Breyer (outgoing) warned against this. “What happens comes back,” he said in an interview with NPR. “And if Democrats can do it, Republicans can do it.”
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What he forgets to mention is that Republicans don’t want to to do it. They never did. During the Obama years, we saw several Supreme Court decisions that did not go our way. I was so furious with the decision to National Federation of Independent Businesses c. Sebelius confirming Obamacare that I wrote a book about it. But my colleagues and I have not called for the enlargement of the Supreme Court, because what matters most to us is the Constitution, the people it protects and the continuity of the sober and balanced government it establishes.
Most of the American public still understands that Court-packing is a mistake. But as long as this particular sword is held above the Supreme Court by prominent liberals inside and outside government, justices like Sonia Sotomayor will be particularly concerned with governing as the radical left wishes. If they don’t, they know there could soon be several more chairs behind the bench. Moreover, given all the outcry and media attention that has surrounded recent court rulings on abortion, a ruling that goes against the wishes of the left might just move the window of Overton on the matter of packing the Court to a place where it is, finally, a viable option.
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As Dobbs was being discussed, Brian Fallon of the liberal black money group Demand Justice – which is now fundraising with the slogan ‘#ExpandTheCourt to save Roe’ – said: “This push will go into hyperdrive if the court upholds the ban of Mississippi, let alone nullify Roe outright.” He was right. The office of a pro-life group was the victim of an arson attack. Supreme Court justices have been targeted in their homes by protesters — a tactic they deployed against my family decades ago, a tactic legal experts call illegal and MSNBC experts call “good”.
Of course, if it’s not that decision, it could be another. Unless Americans unite quickly and decisively against the tragic idea of filling the Court, neither the protests nor the pressure will end until the damage is done.
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