I am perplexed. The response on the Left to Anthony Kennedy’s resignation and the resulting open seat on the Supreme Court has been utterly predictable. I expected their hysteria and fear-mongering. The response on the Right is what has me puzzled.
Senator Susan Collins, a Republican (though I wouldn’t call her a conservative), said, “I view Roe v. Wade as being settled law. It’s clearly precedent, and I always look for judges who respect precedent.”
But she is not alone. Conservative sources that I respect are suggesting that it is too late to overturn Roe v. Wade or to reverse the 2015 Obergefell decision that legalized homosexual marriage. They are citing a respect for precedent and the danger of rulings that would disrupt huge numbers of lives. Now, that confuses me.
Firstly, while I don’t have legal training and am not an ardent Court follower, I don’t think it is that uncommon for the Supreme Court to rule in ways that make earlier decisions obsolete. Certainly, both Sonia Sotomayer and Elana Kagan were confirmed in spite of (or perhaps because) both looked to establish new ideas and social norms rather than relying on the Founders’ intentions. Isn’t the whole rallying cry of many liberal judges not to be tethered to the past?
In the great moral issues of the day, specifically slavery, I can’t imagine any Senator explaining that noted civil rights cases like Plessy v. Ferguson needed to be upheld because of precedent and the great disruption that would come if they were overturned. In 1954, the 1896 decision confirming that “separate but equal” was constitutional, was unanimously reversed by the Warren Court in Brown v. the Board of Education. Fifty-eight years of precedent and huge societal impact didn’t stop the Court undoing a grave wrong a previous Court had affirmed. Abortion on demand is another such great moral issue. Perhaps precedent demands that great issues that cause egregious damage need to be corrected.
If precedent was as important as is being claimed, neither Roe v. Wade nor the Obergefell decision would be law. Roe v. Wade found a right in the Constitution that had never been there to the point that many legal scholars, including those who favor abortion, admit that it was terrible law. Obergefell undid over 2,000 years of precedent that established marriage as between a man and a woman. As for affecting society, both caused and continue to cause immense challenges to the millions of Americans whose First Amendment religious freedom rights conflict with these rulings.
Politicians and pundits are notorious for speaking out of both sides of their mouths. With straight faces and without a hint of embarrassment Democrats will tell you that you must vote for a candidate because of her female body parts unless she is a Republican in which case her biology is irrelevant. So, to hear people who have advocated splintering established norms and establishing a brave, new world discover that precedent is their current favorite word isn’t a surprise. However, I am truly puzzled by conservatives, including those who disagreed with convention-shattering Supreme Court decisions, shrugging their shoulders and saying that it’s too late to return to saner jurisprudence. What am I missing?