In 1973, seven of the nine justices of the United States Supreme Court headed by Chief Justice Warren Burger decided that an unborn baby wasn’t a person and that the Constitution of the United States did not fully protect that child until after birth. In 2022, six of nine justices of the United States Supreme Court headed by Chief Justice John Roberts decided that the Constitution didn’t give the Federal government the power to decide such matters and gave that power to the states.

In my opinion, both are cop outs. But the later cop out is an improvement on the first.

The Burger Court was made up of eight white men at the time. Justice Sandra Day O’Connor would be appointed the first woman to serve on the Court in 1981, while Warren Burger was still Chief Justice. Justice Thurgood Marshall, who joined the Court in 1967, was the first black man to serve on the High Court.

So basically, nine MEN decided that somehow the right to privacy, not found explicitly in the Constitution, gave doctors the right to commit infanticide if a woman didn’t want her baby. The baby was not consulted. Neither were any women in the decision that cost some 62 million babies their lives.

But somehow when six men and three women decide that the power to make the legal decision belongs with the states, they are stripping women of their rights?

In Roe, seven men, including Marshall, voted for the decision. In Dobbs, five men and one woman voted to overturn Roe. Maybe I’m missing something but isn’t this supposed to be the Identity Politics Era? He or She who has the most victim points wins? The six justices voting for the Dobbs decision included a black man and a white woman where Roe only had one black man. Surely Dobbs wins on points, right?

Maybe we should make decisions on facts, good information, best reasoning and even a little logic rather than what color human being is in vogue right now.

The elephant in the room is that the Supreme Court had no business making law by judicial fiat in the first place. Oh, it’s time honored and not just back to the Warren Court. We can go all the way back to the Madison Court – that’s the first Supreme Court – for this kind of shenanigan. Nor has it been nearly as rare as we like to pretend. The Supreme Court’s power is based in prestige – basically, it has power because we respect it. It keeps that power largely through bobbing and weaving, only occasionally throwing a real punch when it thinks it can safely poke up its collective head.

As I get older I am less sure Marbury v Madison – the case judicial review comes from – was such a good idea. The idea is sensible enough – we do need a way of deciding just what is and is not constitutional. But the Supreme Court hasn’t handled the power particularly well. It gave us Brown v Board of Education but only 76 years after the ridiculous Plessy v Ferguson that Brown overturned. At least it only took 49 years to overturn Roe in Dobbs v Jackson Women’s Health Organization.

We deserve a better Supreme Court. No, not a bigger one – a BETTER one. A little less political and a lot more legal. We need justices that care about the Constitution and upholding it. And we need a way to keep them in their lane.

That last bit is the hardest. We don’t want a judiciary that is constantly looking over its shoulder – no one works well that way, not even overpaid Harvard grads. But this nonsense of reading rights into the Constitution has got to go. If we want to change the Constitution we can – but that is for the American people to decide, not nine overpaid, underworked Ivy League legal eggheads.

No matter what race, sex, nationality or creed they come in.

Author: Archena

Cranky old lady with two degrees in Political Science and she ain't afraid to use 'em! View all posts by Archena