Liberals throughout the country applauded three years ago when, proclaiming that the Constitution requires states to confer same-sex marriage, the U.S. Supreme Court reversed 44 years of precedent in constitutional law as well as practice going back to the adoption of the Constitution in 1789.
Liberals in Connecticut also applauded three years ago when the state Supreme Court ruled capital punishment unconstitutional, thereby reversing the state and federal constitutions themselves, which always have explicitly authorized capital punishment and still do.
But a few weeks ago liberals criticized the U.S. Supreme Court for reversing its 41-year-old decision holding that government agencies could require their employees to pay dues to unions they didn’t want to join. The precedent should have stood, liberals said, because it was precedent and much policy had grown up around it.
And now that President Trump’s nomination of Judge Brett Kavanaugh to the U.S. Supreme Court is suspected of inviting a challenge to the abortion rights declared in the court’s 1973 decision in Roe v. Wade, liberals - including Connecticut Democratic Sens. Richard Blumenthal and Chris Murphy - again are freaking out about possible disrespect for precedent. But Roe itself also reversed precedent going back to 1789, since prior to Roe abortion law always had been left to the states.
Of course when it comes to the Supreme Court these days respect for precedent doesn’t really concern liberals or conservatives. Their concerns are only policy and power.
With the Warren Court in the 1950s and ‘60s liberals began elevating their policy desires to constitutional requirements, since constitutionalizing an issue could push democracy out of the way when it became inconvenient. Now that they are in power nationally, conservatives are playing this game too.
As a result the country is being led to believe that the Constitution is just anyone’s wish list, requiring whatever one likes and prohibiting whatever one dislikes, led to believe that there is no distinction between what the Constitution says and what policy should be.
But contrary to the suggestion of Connecticut’s senators, Governor Malloy, and other leading Democrats, there is no danger that the U.S. Supreme Court will criminalize abortion. For the court has no such power. Even if the court reverses Roe, abortion policy would just return to the states and Congress.
Connecticut generally favors legalizing abortion, at least prior to fetal viability, and so state law permitting abortion likely would be preserved. But state law on abortion goes against public opinion by letting minors obtain abortions without the consent of their parents or guardians, even as this policy has concealed the rape of minors. Ironically, while waiving parental consent for minors getting abortions, Connecticut law requires it for minors getting tattoos.
Startling as it might seem in Connecticut, opinion in some states is hostile to abortion and opinion nationally would prohibit late-term abortion, which the Roe decision itself indicated states could do. Further, many legal scholars who support legal abortion acknowledge that, as a matter of law, Roe was mostly judicial contrivance.
But Democrats seem to think that they can win on this issue only by generating enough hysteria to prevent any honest discussion that recognizes distinctions.
Chris Powell is a columnist for the Journal Inquirer in Manchester, Connecticut.