Sea Change At The Supreme Court
The U.S. Supreme Court announced a decision today which finds a federal law banning "late term" "partial birth" abortion to be constitutional. You can read the Opinion here.
I'm not going to deal with the issue of abortion. But, this decision represents the clearest example to date of the legal and political results to be seen due to the recent change in the make up of the Supreme Court. Until the death of Chief Justice Rehnquist and the retirement of Justice O'Connor, Justice O'Connor had for some time been the Court's "swing vote" on controversial matters. The appointment of Chief Justice Roberts to replace Chief Justice Rehnquist did not change the voting "blocks" on the Court. Both skew conservative. The appointment of Justice Samuel Alito however, to replace Justice O'Connor, a conservative for a moderate, has made Justice Anthony Kennedy the Court's swing vote between the conservative and liberal blocks. Where he lands in a case will often decide the matter.
Thus it should be no surprise that Justice Kennedy wrote the Court's majority opinion today. Going forward, we will see Justice Kennedy in the majority in most, if not all 5-4 opinions.
This sentence from his opinion, regardless of the merits of the case, troubles me: "…[R]espondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases." The following is dry and stuffy so feel free to quit now. I'm not going to go into the jurisprudence of the Supreme Court as it relates to different subjects' constitutionality and the tests for whether a law "facially" or "as applied" unconstitutionally infringes on a constitutional right. The comment is probably the result of the Court's determination that it would apply a rational basis rather than strict scrutiny test with respect to the Government's interest in regulating the procedure. And that is perhaps one of the telling results of the opinion. I think that the Supreme Court is quite open to chipping away at Roe v. Wade. Given this willingness to bless restrictions on abortion, you will see a lot of laws passed which do just that.
5 comments:
I just read this post again. Turgid is a kind word to describe the last paragraph. I apologize.
Funny how 'states' rights' are a great thing, until it comes to some moral issue that the right cares about. Then somehow we need lots of federal guidance in the form of laws that trump the individual state laws.
Fermi,
Careful what you ask for. You are right in what you say; Scalia is famous for duplicity in his constitutional views when federalism is necessary to get him where he wants to be. Otherwise, when the state law meets his approval, he trots out the canard.
I say careful because, where I see this trend going is a balkanization of civil liberties. I may have to move to New Hampshire in my dotage.
Thanks for stopping by my blog. I've been concerned about this and where it could lead all day.
It causes me great concern when I see the way the US supreme court is so easily manipulated. Don't get me wrong, I know that there is the same opportunity for abuse in our (Canadian) system, but it doesn't seem to be as polarised as yours. I sometimes wonder if it has to do with the dual versus multiple party political system.
barb
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