Brett Kavanaugh. Image Courtesy of Wikipedia

We officially have a right-leaning, conservative Supreme court. I’m not happy about it, but I’m also not in a panic. Elections do have consequences and those of the 2016 Presidential election will be felt for at least a generation, but trying to divine what those will be is a fool’s errand in many ways. There are simply too many variables to determine with any certainty what it all means.

Certainly, there is much consternation about the possibility that a woman’s right to choose abortion could return to being limited based on an individual state’s local politics. Time will tell if the “right case” can be made at the state level and then work its way up through the Federal Courts and present enough new information, or a novel way of looking at pregnancy that the court would agree to review Roe v. Wade, and then decide that they were going to overturn what has been settled law for 40ish years.

The talking head groups that claim to speak for “women” (a dicey prospect in the best of circumstances) predict a huge backlash against the Republicans in the coming midterm elections. I’m not so sure.

It seems to me, and I’ve been wrong before, that speaking of “women” as a voting bloc is not effective. The numbers and history don’t support the proposition that women will blindly vote based on their gender in a certain way on any particular issue. If women voted as a bloc then I think Hillary Clinton would be running the White House and Bill would be attending more funerals around the world.

If women did in fact vote that way, when they outnumber the men, especially in the vital older adult groups that actually DO vote, why have they not won on the issues such as the Equal Rights Amendment, abortion and Hillary? Because they are independent thinkers, or not, just like the men. We do not all think alike, we do not all vote alike and that is why elections matter. We use them to come to some version of a workable solution that reflects our overall values as a society.

Hitting a bit closer to home for me would be gay rights. How this new conservative court will resolve the next gay rights issue is also an unknown. Am I concerned that there will not be the protections in place for my gay and lesbian family in the workplace or housing choices? Certainly. Do I think the Court will overturn Obergfell and make gay marriage illegal? No, I don’t think so. The fact is that society has moved on, and yes there is a vocal minority that wishes to return to a “traditional values time.” It’s simply not possible.

For the Court to ban gay marriage would require them to remove a right, a right that is in the Constitution. It would open up the opportunity to bring back miscegenation laws – those laws that prevent blacks from marrying whites – I don’t see that happening ever, so I’m reasonably confident that gay marriage is here to stay.

This opens up the question of why the gays are ostensibly more protected than the women in our society.

I think the issue turns not so much on gays versus women, as mother versus child. What I’ve noticed is that a person’s views of abortion are generally informed by either their religion or their science. Generally, for those of a religious bent, life begins at conception as a blessed event. A new person is formed, a new soul is created and it should be cherished, nurtured and protected.

For those of a science-based view of life, an embryo is no more than a mass of cells, not that different from a cancerous tumor, skin tag or mole. They see no higher difference in removing an early stage embryo than in removing a troublesome cyst. To them, abortion is just a procedure that can and should be done with little risk to the larger person.

In the calculus of these decisions, regarding abortion a Justice, on the one hand, is deciding where life begins and if we as a society should protect that unborn life, or not – versus gay marriage where they are deciding if two fully conscious adults (let’s say Leah and Tricia) can exercise free will to be married which does not impact a third person who cannot speak for themselves.

How a conservative Court will rule on any particular issue is usually a mystery until the decision is published. Historically the Court moves slowly, and almost never within step with the country. As a practical matter, we are better served by a slow-moving slow moving Supreme Court, that way they reflect the morals and values of the nation as it grows, changes and evolves. Yes, it means that injustices are perpetuated longer, but it also means that once a decision is made, the court is hesitant to overturn it. The principle is a Latin phrase, stare decisis. Once decided the rule should stand absent new information. This is why the court is not likely to overturn Roe v. Wade or Obergfell.

A conservative court can mean that little change is made, that decided law stays decided. A Justice is a Justice for life so they can be free to decide absent worrying about how any one decision will impact their job. That doesn’t mean they are not aware of the political winds, they can and should take into account the changes in society and hopefully tack the judicial sails in the way that best reflects our morals, values and direction.

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1 Comment

  1. Good strong points. We are going to be and stay a strong law abiding nation. The Delusional over reaction is unwarranted.

    This court is less likely to be making new law from the courthouse. Leaving the law making to Congress. Following the rules/laws on the books and in the US Constitution is the best for us all.

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