The Supreme Court has stirred controversy with two procedural orders. They revealed much
about the state of our political world.
In one case, the Court decided to suspend a Louisiana law
that requires doctors performing abortions to be admitted to practice at a
hospital. The law could have the effect
of eliminating all but one of the clinics and doctors providing abortions.
The factual question was whether three doctors could obtain
hospital admission privileges. The state
promised to give them 45 days to try, deferring enforcement of the law. It acknowledged that if only one doctors
remained, that would not satisfactorily protect women's health.
In effect, the Court decision lengthened the 45-day
period. It did not decide on the law itself,
though it will later. Among the five-member
Court majority were the four liberal justices and Chief Justice John Roberts.
Justice Brett Kavanaugh was among the four conservatives
opposing the suspension, but was alone in providing a written explanation. He took no position on the law, but said that
the three doctors should continue performing abortions and make a “good faith
effort” to gain hospital privileges in the 45 day window.
If they did not succeed, a stay suspending the law could
then allow the Court to review the law itself.
In short, he said nothing about supporting the obvious effort to
drastically limit abortions.
Two conclusions immediately emerged from the decision, both
most likely wrong. One was that Sen.
Susan Collins had been fooled when she said Kavanaugh would respect precedent,
presumably the Roe v. Wade decision
allowing abortions. The other was that
Roberts was emerging as the Court' swing vote.
Abortion advocates would not trust Louisiana's assurances
which Kavanaugh had accepted. Because he
was not suspicious, he was complicit.
That meant he opposed Roe. Distrusting any statement from those you
oppose is how politics works these days.
Collins took him at his word in his dissenting opinion. The media reported that opponents of
Kavanaugh's confirmation had “slammed” her with the obvious intent to weaken
her reelection chances.
As for Roberts, as much as we want a new swing vote, he showed
his credentials for the title are limited.
In Alabama, a convicted criminal was slated for execution. A Muslim, he asked for an imam to be present. The state refused, saying only its Christian staff
chaplain may attend. Otherwise, it
claimed, without proof, the event might be unsafe. The state claimed he should have known the
rules, though his request for them had been refused.
The Court of Appeals had suspended the execution so that it
could hear arguments on both sides. The
Supreme Court overruled the lower court and allowed the execution to take
place. The five member majority included
the five conservatives, including the Chief Justice.
Justice Elena Kagan said the decision was a direct violation
of the clause in the Constitution that prevents the government from favoring
any single religion or religion itself. She
said the state's reason for its rule should have been examined in court. After the decision, Alabama quickly banned
any religious counselor from executions.
Roberts had fallen in line with the conservatives, not on
procedure as was the case on abortions, but on a basic constitutional
question. That raised a question about the
quality of his status as swing justice.
Both decisions could affect millions of people. The Court owed people more than the short,
procedural orders, providing little detail and judgment. It left the explanation to the media, which
could easily misinterpret the abortion order, making more out of it than
justified and while ignoring the true meaning of the religion case.
As a result, people were misled or ill-informed. That undermines democracy. The Court deals with the law, but it also
affects the people. It might remember
that.
A note. This column
during the week near Washington's Birthday traditionally is devoted to the
exceptional man who embodied the American nation and was its first president. Because last fall, a column was devoted to
his words, relevant in light of the Pittsburgh massacre, this column does not
focus on him.
But we have heard recently from our current president that
his first two years in office were the greatest in history. In his first two years, George Washington
created the American executive branch of government, balancing conflicting
views. He was well aware that he was
setting precedents that might last as long as the Republic. And he displayed great modesty, even
reticence, at times.
These days, his exceptional accomplishments are worth
remembering, especially in the White House.
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