With the recent nomination of Judge Brett Kavanaugh for Associate Justice of the Supreme Court, to replace the outgoing Justice Anthony Kennedy, there’s been quite a few misguided opinions of what the Supreme Court should or should not do (on both sides of the aisle), and what effect Justice Kavanaugh’s new originalist view would have on Roe v. Wade specifically.
Just as a starter for those that are not familiar with the Supreme Court: the Supreme Court of the United States (SCOTUS) is the highest court in the land and the destination of all appeals cases looking to go to the top of the judicial food chain. There are 8 Associate Justices of the Supreme Court and 1 Chief Justice of the Supreme Court. Each member of the SCOTUS is appointed for life by the sitting President and confirmed by the Senate.
Now that we’ve got the definitions out of the way, the main concern I’ve seen from folks on the left of center is that Justice Kavanaugh would work to repeal Roe v. Wade. Judge Kavanaugh when at his confirmation hearing to become Circuit Judge for the Washington D.C. Court of Appeals stated that Roe v. Wade was legally binding under the principle of stare decisis (precedent). So just with that point it should be relatively clear that Justice Kavanaugh is not necessarily (or at least wasn’t at the time in 2006) keen to repeal Roe v. Wade right off the bat. When I said that there were misguided opinions of what the Supreme Court should do on both sides, this is the misguided opinion on the side of some Republicans (not necessarily all conservatives however). Just because something was decided in the Supreme Court does not mean that it was a proper decision and is therefore immune from being overturned by a future court. Dred Scott v. Sandford and Plessy v. Ferguson come to mind when I think of horrible decisions made by the Supreme Court that in and of themselves were unconstitutional, and absolutely needed to be overturned. The Supreme Court upheld racial segregation and the idea that African Americans were not citizens of the United States. Unconstitutional decisions are unconstitutional, regardless if a minimum of 5 people in robes decide otherwise. The only “precedent” the Supreme Court should be working off of is what is written in the Constitution. So, whether or not Kavanaugh will actually work to repeal Roe v. Wade is heavily in question, but in reality he has every right, no, an obligation to do so.
The more damaging misguided opinion, I believe, comes on the side of those supporting liberal Justices and Roe v. Wade. The Supreme Court should not be the tool of either major party to push political agendas. Let’s say that banning flag burning were a main point of the Republican party (not that it is, but it’s been brought up by Republicans in the past), and a case made it all the way to the Supreme Court somehow. Let’s also say that there was a 5-4 “Conservative” majority in the Supreme Court. In no uncertain terms, those 5 conservative Justices should, and most likely would absolutely uphold the right of the people to burn whatever flags they want, since no where in the Constitution does it say that those actions are not within their rights. However, if the situation was reversed and it was a left leaning policy that was unconstitutional to implement, a 5-4 liberal justice majority in the SCOTUS would absolutely push through that agenda item. The perfect example of that is Roe v. Wade itself, which has no real footing in the text of the Constitution. The argument in favor of Roe v. Wade claims that a non-existent right to privacy as defined in the Due Process Clause of the 14th Amendment gives a pregnant mother the right to rip her child from her womb piece by piece. I don’t know how they got a right to privacy that grants the right to abortion out of “nor shall any State deprive any person of life, liberty, or property, without due process of law;” On the contrary, you would think that not depriving any person of life would actually criminalize abortion.
Lastly, regarding the repeal of Roe v. Wade specifically: while it is unlikely that the addition of Justice Kavanaugh would change the fact that Roe v. Wade isn’t going to be repealed any time soon. However, if it were to be repealed it’s not like it would be the end of the world for those who are so concerned about preserving the right to abortion. We have a lovely concept in this country called Federalism. Every single state in which there are a majority of people who believe abortion should be legal, would instantly enact laws to preserve the practice (e.g. California, New York, Massachusetts, Connecticut). There would be states strewn about the Union that would allow people to get abortions even if all of the heavily conservative states decided to ban it outright. If you lived in a state where abortion were outlawed, either move to or travel to a state in which it is not. People’s concern over the preservation of Roe v. Wade seems unwarranted to me as this would be the clear outcome if it were to happen.
The Supreme Court is not what people think it’s for: it is just to review the constitutionality of laws enacted by the Congress of the United States, and hearing appealed court cases; not to make their own policy decisions, and ensuring that the Constitution is upheld regardless of if previous courts made a decision to the contrary.