A Supreme Mess
As you might imagine, I have some thoughts regarding the leak Monday night of a proposed Supreme Court ruling.
For hundreds of years, our appellate courts have operated under an appropriate code of secrecy…as in, rulings are only released when they are final. Justices read draft opinions all the time, and to have that play out in public will destroy the concept of judicial collegiality.
That’s why the breach this week will ultimately have far greater and longer lasting impact than the ruling itself.
If indeed this winds up being the final ruling, the hue and cry from those who don’t like the decision is no different now than it would have been in June. The only purpose of a leak is to pressure justices into changing their initial vote on the decision. And that’s the kind of public and political pressure from which an independent judiciary should be insulated…that’s why it’s a lifetime appointment not subject to re-election.
The fact that it could disturb precedent of 49 years duration is a false argument, in my view. After all, the Brown v. Board of Education desegregation case disturbed precedent of 58 years…would these same people think separate-but-equal facilities should have remained the law?
Similarly false is the claim that a majority of citizens want something. That’s why the independent judiciary decides constitutional questions, not the vote of the people. If the people don’t like this decision because it says there’s no constitutional right involved, then amend the constitution and include it. And again, I’m not sure the vote of the people on issues such as slavery and the like would have been supported by those today who claim majority rule is dispositive.
And keep in mind, even if this decision was handed down today, abortion will not be illegal; it will simply be up to individual states, and Iowa’s Supreme Court has already interpreted a right to abortion within our state’s constitution.
Again, none of this has to do with the actual constitutional questions involved. But until there actually is a final ruling, we only have the side issues to discuss.
