Addressing The Leaked US Supreme Court Draft Part 1

When discussing the recently leaked Justice Samuel Alito draft, potentially overturning Roe v. Wade, there are two separate issues that need to be addressed. First, the leaking of the confidential decision and second, the decision itself. For the purpose of length, I will address both of these issues separately. But first I will discuss Supreme Court Judges as referenced in Article II and Article III of the United States Constitution.

The Constitution states that The President is charged with appointing federal judges including Justices of the Supreme Court in Article II Section 2 number 2, “and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:”. That’s the entire reference to the President nominating Supreme Court Judges. Everything else is interpreted by scholars. It simply says the President nominates Justices and the Senate confirms the nominees.

With reference to Article III or the Judicial Branch, it’s quite brief, covering only 3 Sections, the third section includes 2 points referring to treason. Article III Section 1 states, “The Judges, both of the Supreme and Inferior Courts, shall hold their Offices during good behavior.” It then references compensation. But that’s it, “hold their offices during good behavior.” That’s the entire reference stating lifetime appointments. As long as the Justices exercise “good behavior” they can remain Justices. How good behavior is defined is for legal scholars to define. But clearly, The Framers intended the Court to be independent, and free from the other branches of government and political discourse or outside interference. That isn’t to say the Court doesn’t create discourse, by its decisions, but it isn’t the Court’s role.

While there are many who would say the leak of the draft, overturning Roe v. Wade is far less important than the actual decision, I wholeheartedly disagree. The United States Supreme Court is not a political body. It’s not supposed to be a political body. The utmost secrecy of the court’s decisions is just one crucial element to preserving the integrity of the court and ultimately, our democracy. It must be held in the highest regard, and cannot be compromised, despite the intense emotions controversial decisions generate. Unfortunately, in today’s highly charged and fragmented country, both sides want the court to answer to the whim of the people. In truth, that’s always been the case, but I would argue, more the case today, than at any time in our country’s history.

In the past, Americans have been able to see past their individual wants or needs. They understood that while decisions of the court might differ from their own political or moral leanings, the Justices were doing their jobs as prescribed by the US Constitution. Of course, there were protests. The original Roe v Wade decision stoked passion and anger as it still does today. But the overall mood of the nation, was that of respect, certainly for the court and our other institutions. Never, would protesters go to Justice’s homes or threatened their lives. It’s incomprehensible and reprehensible. Since the Justices do enjoy lifetime appointments, they are free to rule objectively, without fear of repercussions. It must remain that way.

One of those roles of the court is to interpret the Constitutionality of laws. It’s not to legislate or to answer to the President, US Congress or the voters. Our history has demonstrated that Justices often don’t vote the way the President, who appointed them, expected them to vote. One such example is Justice Harry Blackmun. Despite being appointed by Richard M. Nixon, a Republican and conservative, Justice Blackmun turned out to be one of the most liberal Justices on the Supreme Court. He voted in favor of forcing President Nixon to hand over the Watergate tapes. In response to the Watergate break-in, Blackmun stated that the “very glue of our ship of state seems about to come unstuck.” He was concerned about the “consequent grave damage to the democratic process.” Despite his gratitude to Nixon for his appointment, he chose to put country before nepotism. It’s ironic that Justice Blackmun authored the very contentious and divisive, Roe v. Wade decision in 1973.

Another example is Justice Anthony Kennedy joining the 5-4 majority in Obergefell v. Hodges, legalizing same sex marriage. Despite being appointed by President Ronald Reagan, in 1988, Justice Kennedy voted with his conscience on what he believed to be solid, sound Constitutional reasoning. Justice Kennedy, on a number of decisions, crossed party lines. Had he not been free from political repercussions including replacement by the party that nominated him or the voters, he might have ruled differently in those decisions. Constitutional law is replete with decisions by Justices crossing party lines, even though party should never be a consideration. The Court and decisions must be respected and adhered to, if our Republic is to remain intact.

Is our system of government perfect? Of course not. There’s no such thing as perfect. I would argue that imperfect human beings with completely different religions morals and beliefs, are incapable of creating perfection. Never will you get millions of people to agree unless there’s a catastrophic event like Pearl Harbor or the attack on the World Trade Center. But almost 250 years later, the most brilliant form of government ever derived by humans, created the blueprint for what is the longest standing Republic on earth.

The integrity of the Court has nothing whatsoever to do with the popularity of their decisions. It depends entirely on the interpretation of the Constitution and whether there is legitimate legal reasoning behind those decisions. If a majority of Americans are concerned about overturning Roe v Wade, then they need Representatives who will write and pass legislation legalizing what many consider to be a personal choice between a woman and her doctor. Of course, on the other side, there are millions of Americans who consider the procedure to be murder. I won’t solve that here. But I will address the decision and ramifications in Part 2.

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