Modern Americans believe Roe v Wade (1973) was the worst Supreme Court decision ever rendered. I place it at #2, since Roger B Taney’s majority opinion in the Dred Scott decision in 1857 was far worse in my view.
In that decision, the Court determined that Dred Scott (interesting fact situation) a slave to an Army surgeon who had lived in both slave and non-slave states, was not entitled to sue for his freedom. By the various state laws he was free when living in free states and a slave when living in slave states. He sued in Missouri. The case and appeals took 11 years.
The Court ruled 7-2 that Scott had no standing to sue and Chief Justice Taney specifically stated that (African Americans) could not be considered citizens and that Congress could not prohibit slavery in the territories. as it had done in the Missouri Compromise of 1820. In short, they were not “persons”, even if born free, or made free by their owners.
I can think of nothing more cynical, but it was a “done deal” politically from the beginning, for 6 of the justices were Jackson-Democrats, whose party was born on the notion that the never-ending tension between slave and free states was a good political situation to keep going. And profitable.
Of the seven votes, five (a majority) of the Court, were from slave states, including Taney from Maryland, the other four from states that would shortly secede from the Union. One assenting justice, Nelson, was from New York and Grier from Pennsylvania, who was lobbied behind the doors to change his opinion.
Here’s the rub: While the Washington establishment cheered this decision, believing the Scott case had settled the slavery issue once and for all (typical Democratic thinking then, avoiding war, giving extra bang to the 1850 Fugitive Slave Act which allowed southern bounty hunters to come north and arrest runaway slaves, the Free states were outraged.
And how they showed that outrage was to elect Abraham Lincoln of the relatively new Republican Party, and which included the abolishment of slavery in their party platform. People have made livings off writing books about the “causes of the Civil War”, but Lincoln’s election was the direct cause of it, for 11 southern states seceded in February, 1861, 3 weeks before Lincoln was even inaugurated (Mar 4), and then first the first shots at Ft Sumpter five weeks later (Apr 12).
A complete boomerang from what they gad imagined, the Taney court had not seen this coming, although history is scant about any personal or professional recriminations by the seven justices. Except Taney (Maryland didn’t secede) the other four slave states judges followed their home states into the Confederacy. But what seemed to be clear was that the decision, while written to sound based in law, was politically-driven, ear-to-ear.
I doubt any felt any personal remorse for the next five years of war.
Similarly, Roe v Wade was decided by a 7-2 decision, the majority opinion written by Harry Blackmun, a Nixon appointee who went on to be known as one of the Court’s most liberal members. Jane Roe was really Norma McCorvey, whose Wikipedia bio I include here because it is such a hoot, written almost entirely by Washington Post, New York Times sources, and in the Trump era, saying she made deathbed confessions that she was paid to come out against abortion, and, that her conversion to Christianity was bogus.
In fact Jane Roe took her baby to full-term, put it up for adoption, then lobbied for years against abortion, hence the fake news after she died in 2017.
The official Roe decision Blackmun wrote stated that this “right to an abortion” was found in the Due Process Clause of the 14th Amendment of the Constitution thus creating a “right to privacy” that protects a pregnant woman’s right to choose whether or not to have an abortion. This took the abortion issue away from the states and placed it within the enumerated rights of the Constitution. Even liberal legal scholars argue that it was really bad law, creating a new right out of thin air.
And like Dred Scott, the court’s decision was based on a mistaken understanding of the zeitgeist of time, for it did not reflect a shift in the national consciousness but rather a fad among young women. Roe was sold as a gift to society, ostensibly aimed at women of color who couldn’t afford more children but in truth was directed at the millions of baby boom girls (mostly in college) who the feminist movement believed should not have to delay their careers because of an unplanned child. An ability to avoid an inconvenience, especially telling the folks back home, even stretch marks and other vanity issues. So the war that would erupt was both social and political.
Also, the original Roe decision limited this “right” to the first trimester of pregnancy, or first 12 weeks…that the forming tissue that would be aborted would not be viable outside the womb. Once that little body was viable the state could still disallow the abortion.
That was then. Now states are considering the allowing abortions up the moment just before birth, and maybe even a day or two after, to give mom the chance to decide whether she still wants to keep it. And a real meat market in fetal tissue and body parts has arisen in the process.
Using CDC and Guttmacher Institute statistics abortions increased by almost 100K a year from 1974 to about 1980, then flattened out thru the 80s, then began receding in the early 90s, where those numbers continue to drop, annually. There are various reasons for this drop. The increased availability of sonograms are one, so that not only family, but the world at large could see that very early on that is a real human being in there. The pro-abortion industry lost much of its popular support, especially among the poorer people of color who Margaret Sanger most wanted to abort out of existence a century ago. And when Planned Parenthood got into the business of selling body parts.
Today abortion has become a shibboleth of the feminist movement, an exclusive property, held for predominantly white, affluent spoiled young women. Even girls who are lesbian, with no interest in carrying a child, and who probably couldn’t hire a pregnancy with a fistful of pardons at the state penitentiary, still claim this abortion right to be a major part of their identity. They probably don’t know it, but they would understand the exclusivity of slave-owners of the 1850s much better than working people.
Naturally, we have little record of any remorse about the Roe v Wade decision by the affirming justices. Except for the lone voice of the plaintiff, Norma McCorvey, I suspect they all were content with their decision.
So the two worst decisions in Supreme Court history were driven by political considerations, both having had adverse effects on workaday lives of the American people.
That said, then… this week, the Court will consider whether to take up appeals made to it in the days after the 2020 elections about alleged voter fraud and unlawful state government interference contrary to their own state assemblies’ laws…in Georgia, Michigan and Pennsylvania.
In a peevish manner, this Court refused to expedite these cases before the Electoral College met in December, or even Inauguration Day, using a strict adherence to procedural rules that it would not rush into hearing evidence without the proper procedures (unlike how it did in 2000 in Bush v Gore).
But as ordinary citizens who simply hear the news, it would be hard for me to believe that at least the six (6) constitutionalist judges have not seen what the first 30 days of this alleged “illegally-seated administration” has already done and likely has in store for the next four years, and arguably…and arguably, in perpetuity, since, as things stand now, much of the voting methods that placed this administration in power in the first place will never likely be undone should the Court not rule in favor of the plaintiffs.
Options: 1) The Court can rule in favor of the plaintiffs, but fashion only a scolding by telling the named states “not to do that again”, then allow this election to stand, thus signaling to Americans they’ll just have to bear up until they get another chance, in the 2022-2024 elections;
2) The Court can wash their hands in it all, ruling for the several defendants, in effect ending any real authority future Supreme Courts might ever project;
3) Lastly, the Court can rule in favor of the plaintiffs and order every illegal act to be undone (since it was its own rules in December that allowed them to be sworn in in the first place), allowing every illegally-robbed candidate (there are dozens) to take their rightful place, and order law enforcement to do its job.
Yes, the next 4 years, either way, will be ugly. But only one decision will live on in infamy, and that is should the Court chooses #2.
Of course, it remains to to be seen whether the Court’s members will go to their graves content that their reputations will be remembered favorably in History. That’s the crap shoot.
The Dred Scott decision in essence said that black people aren’t really people. The Roe court stated that babies still in the womb aren’t really babies. Both were political determinations, subordinating law to those considerations. To do anything less than return law to its proper role this ostensibly “conservative” Court, will have said that America really isn’t America anymore, just a brand-name, and moreover, that it can never be fixed by any lawful means.
