Abortion and the Supreme Court's institutional responsibility

 The Supreme Court's agreement to hear the challenge - upheld below - to the Mississippi law banning abortion after fifteen weeks has prompted thought.  As did today's column in the Washington Post by David Drehle about the court and institutional responsibility.

When Earl Warren assembled the majority he needed for Brown v. Board of Education he did not follow William J. Brennan's rule of five maxim.  He insisted on unanimity.  That doubtless had a limiting effect on remedy - which was phrased as equitable - leaving lots of room for judicial discretion.  That, of course, turned out badly.  Until 1968 there was virtually no integration as massive white southern legislative and judicial resistance blocked the way.

Only after the civil rights act of 1964 when the DHEW had the power to withhold federal funds did the courts - led by the great Republican 5th Circuit judge John Minor Wisdom - overcome the obstacles: by issuing a blanket order to comply with HEW requirements for recipients of federal aid.  The Supreme Court denied Cert but in New Kent County the next year declared that the dual systems must be extirpated "root and branch".   Only in 1974 did the Supreme Court split in a desegregation case.  That was in Detroit where the court essentially abandoned racial integration outside the south.  Compelling integration of northern white districts was a bridge too far.   It would be punishing innocent in the majority's view, which the minority recognized as throwing in the towel.  Voiding expressly racist state laws and decisions was as far as the Supreme Court would allow itself or the courts to go.  That was where the national consensus ended and - still does.

The retreat had been rationalized by then Circuit Judge Griffin Bell who said that "desegregation" - elimination of formal obstacle - was enough.  Integration, he argued, was a fool's errand - like Prohibition and other "eleemosynary" laws.  He was rewarded with the Attorney Generalship by Jimmy Carter.  

​There's not much doubt where reversing Roe v. Wade would end.  New York, New Jersey, Massachusetts and California would act to reinstate it as a matter of state law.  The states where slavery once held sway would not.

So the Supreme Court's ​Catholic super-majority (throwing in Neil Gorsuch who fell off the curb into Episcopalianism) has a difficult decision to make.  Will they follow their own personal beliefs - and impose them on the nation - as Gorsuch's dissertation adviser John Finnis is arguing.  The 14th Amendment due process clause should be held to declare fetal personhood from the moment a human egg is fertilized, barring states from permitting abortion, he said in First Things.  Or should the Catholic conservatives on the court hesitate, as Catholic political scientist Stephen Milles suggests - and recognize that Catholic Integralism should not triumph.   Deciding that it would be a mistake to make such a dramatic change in social expectations  absent something approaching societal consensus - as occurred in the Obergefell case - where only the historically reactionary southern states held out against same sex marriage.  For this the Justices would have to recognize  that most of the country does not agree with them  - and that for them like Griffin Bell - the conservative choice is to show that the courts are the least dangerous branch.  Therefore even though they have the votes they would not exercise the awesome power five votes on the court gives them.

​- GWC