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Supreme Court won’t ignore public opinion

More than a century ago, Mr. Dooley, the Chicago Irish bartender created by journalist Peter Finley Dunne, sagely observed that, “the Soopreme Court follows the illiction returns.”

Today, the observation still stands, though it might be more accurate to say the 21st century Court follows the public opinion polls, which can be an even more reliable measurement of the nation’s will than the election returns.

With that in mind, let us now hasten to wager that, despite panicky and mournful assertions by Democrats, Roe v Wade, the separation of Church and State, and gay rights, including marriage, are not doomed.  The Court will follow the people in most, if not all of these issues, even with the addition of Justice Kennedy’s successor, whether he or she is the president’s first nominee or his second or his third.

The public largely accepts Roe as settled law by a rather comfortable margin. Recent polling by three credible organizations, Quinnipiac, the Kaiser Family Foundation and NBC, indicated that between 61 and 67 percent of those polled said Roe shouldn’t be overturned while 29 to 31 percent said it should.  That, combined with precedent, should keep the decision largely intact. And let’s not forget, the retirement of Justice Kennedy doesn’t mean the loss of a swing vote. You’ll recall that Chief Justice Roberts showed that inclination in being the fifth vote upholding Obamacare and appears to respect precedent and his place in history.

The outright overturning of Roe would be supported by Clarence Thomas and maybe Samuel Alito, but I doubt the other conservatives would be so rash.

That’s the national picture.  Connecticut is one of nine states that has codified the Roe v Wade decision into a state law, which means that even if the Court dumps Roe, abortion would remain legal here unless the Connecticut Legislature passed a new law banning it, which is even less likely than banning the state income tax.  

Roe’s demise has been predicted regularly since it was decided by a 7-2 vote in 1973.  It is instructive to recall that the 1973 Court had a Republican majority, but it should also be noted that presidents in those days tended to consider more than social issues in selecting jurists for lifetime jobs.  

The Roe decision was written by Justice Harry Blackmun, appointed by Richard Nixon as was Chief Justice Warren Burger, who concurred with the three appointees of Republican Dwight  Eisenhower, Justices William Brennan, Potter Stewart and Lewis Powell.  By my count, that’s five Republican justices, a majority of the nine-member court. The five Republicans were also joined by William O. Douglas, the last surviving justice selected by Franklin Roosevelt, and Lyndon Johnson appointee Thurgood Marshall.

The two dissentions were also bipartisan, the newest Nixon appointee and future chief justice, William Rehnquist and John Kennedy’s only justice, Byron White. Those were the days, my friends.

And that brings us to the newest presumptive member of the Court, D.C. Circuit Court of Appeals Judge Brett Kavanaugh, who has a long paper trail for the opposition to pick apart in the upcoming hearings by the Senate Judiciary Committee.  His record is clearly conservative, as happens nowadays when there is a Republican president and Senate, but he is also well qualified.

In his last hearing, before he was confirmed for a seat on the U.S. Court of Appeals for the influential Washington D.C.  District, this is what he had to say on abortion:

“If confirmed, I would follow Roe v. Wade faithfully and fully.  That would be binding precedent by the Court.  It’s been decided by the Supreme Court.  It’s been reaffirmed many times.”

True, that was an expression of how he’d conduct himself as a lower court judge, but it also shows a healthy respect for precedent and history.

It’s also true that a vicious Senate battle could end with Kavanaugh’s rejection if a couple of Republicans defect and Democratic senators seeking reelection in Trump states vote against him.

But even if it happened, Trump would probably nominate one of his other major choices, whose paper trail is not nearly as informative as Kavanagh’s but, as George Wallace liked to say of liberals, there’s not a dime’s worth of difference between any of the 25 potential justices on the list Trump has been using.  (There is also no little irony — and pleasure — in observing that Kavanaugh is almost everything Trump has endeavored to disparage: an Ivy Leaguer, both Yale and Yale Law School, close to both Presidents Bush, an intellectual and an elitist.)

The Democrats blew their chance to put a moderate to liberal on the court the old fashioned way — the election returns. It would serve them better, if not please a base that isn’t going anywhere else, to confirm this qualified justice and get on with the task of winning an election or two in 2018 and 2020.

 

Simsbury resident Dick Ahles is a retired journalist. Email him at rahles1@outlook.com.