Ken McElroy Online

The Supreme Court doesn't exist just to rule on abortion

Ken McElroy
July 25, 2005

Within minutes of President Bush's nomination of Judge John G. Roberts for a seat on the Supreme Court, the usual suspects went into action.

Left-wing activist group said, "In nominating John Roberts, the president has chosen a right wing corporate lawyer and ideologue for the nation's highest court instead of a judge who would protect the rights of the American people...He wrote that Roe v. Wade should be "overruled," and as a lawyer argued (and won) the case that stopped some doctors from even discussing abortion."

People For the American Way begins their overview of Roberts with, "Roberts's record is a disturbing one. Among other things, Roberts is hostile to women's reproductive freedom..."

The National Abortion Rights Action League (NARAL), said in a press release, "John Roberts, is a divisive nominee with a record of seeking to impose a political agenda on the courts, rather than a unifier Americans could trust to preserve our personal freedoms like the right to privacy and a woman's right to choose." How interesting to learn NARAL is against "imposing a political agenda on the courts." Yeah, right.

It often seems that to many the Supreme Court exists for the sole purpose of ruling on abortion, or specifically to uphold Roe v. Wade. All nominees are judged based primarily on this one criterion. Does the nominee oppose abortion "rights"? Or does he recognize a woman's "right to choose"? For Democrats especially, who are in the hip pocket of interest groups like NARAL, there can be no dissent on this question. It often appears that in the eyes of the Democrats, a nominee that opposes abortion on demand is akin to one who opposes free speech. But of course freedom of speech is expressly protected by the Constitution, and abortion is not.

But what is the job of a judge? It is not to be a "unifier." For an analogy, imagine a hypothetical state or federal judge working in one of the many courtrooms across America every day. Suppose this judge personally believes that drugs should be legalized, that the "war on drugs" should be called off. Now imagine this judge has before him a defendant who has been charged with possession of cocaine. What should the judge do? Should he follow his personal views, say "this law is a living, breathing document, times change," and release the accused, because he believes drugs should be legalized? Or should the judge follow the law as currently written, and sentence the accused to jail upon conviction?

The answer to that question is probably obvious to just about everyone. The judge's job is not to change or ignore the laws he doesn't like. He can resign his judgeship and run for legislative office if he wants to change the laws that are currently in place. His job is to apply the law as written to the cases that come before him. Thus, in the hypothetical above, the judge has a duty to apply the drug laws as they currently exist.

The job of a Supreme Court Justice in essence is no different. It isn't a matter of being a "conservative" or a "liberal", or of "maintaining balance" on the court. All nine justices have a duty to apply the laws of the United States as written to the cases that come before them. It takes a person with a great deal of self-restraint to rule in such a way that would result in an outcome they don't prefer. But that's their job, nothing more, and nothing less.

This simple standard should lead the court to overturn Roe v. Wade. Abortion is not mentioned anywhere in the Constitution. As in our hypothetical above, the justice's personal views about abortion are entirely irrelevant. Both justices who believe abortion should be illegal, and justices that believe it should remain legal, have a duty to apply the written law to any case that comes before them, period. Similarly, the courts should stay out of other issues not mentioned in the Constitution, such as same-sex marriage.

According the Bill of Rights, in the tenth amendment to the Constitution, any power not granted to the federal government by the Constitution is left to the states, or to the people. That means, since the Constitution is silent on abortion, it is left to the states to regulate (or not) via the democratic process. Again, whether one believes abortion should be legal or illegal, and whether it is a matter for the Supreme Court to decide, are two entirely separate questions.

Incidentally, it's important to remember that a Supreme Court decision overturning Roe would not ban abortion in the United States. It would do nothing of the sort. Decisions about how to regulate the procedure would simply be returned to the democratic process where they properly belong. Pro-choice advocates such as NARAL always claim that a strong majority of Americans is pro-choice. If they're telling the truth, then they have nothing to fear by leaving the issue to the democratic process, where that majority would vote to keep abortion legal. Is it possible they don't really believe their own press releases?

In any case, all nominees to the courts, including the Supreme Court, should be assessed by this standard: will they limit themselves to applying the laws as written to cases that come before them, or will they seek to implement their own policy preferences, and mold their interpretations of the laws to fit those preferences?

That standard, and not the nominee's own views about abortion, or the definition of marriage, or any other specific issue, should be the measure used to assess the fitness of a nominee to serve on the bench.