11.13.06: Apolitical Day . . . the Morning After.
The morning after last weeks midterm election the United States Supreme Court heard oral arguments for a case bound to be this terms’ most controversial. Looking quite intentional, the Supreme Court scheduled its most politically fiery and contentious case on a day when the media was in no mood to cover another hot potato. The Court, which is supposed to be apolitical, played an amazing political hand by flying under the radar last Wednesday. Staying off the front page may be just what Chief Justice Roberts wanted last Wednesday but does it expose the Court for what it has become - another branch of government ruled primarily by politics?
What case did we miss?
The Supreme Court heard oral arguments regarding the constitutionality of The Partial Birth Abortion Ban Act of 2003. Six years ago in the case Stenberg v. Carhart (2000) the Court struck down Nebraska’s partial birth abortion ban. This time it appears to be different. This time an overwhelming bipartisan Congress passed the ban. In the statute, it is argued that such procedures are never necessary. Further it is argued that such a ban is a “defense of the border between abortion and infanticide.” The health of the mother and her constitutionally protected right to choose should not interfere because the procedure is not necessary. Of course many disagree.
Many suggest that this ban and its fuzzy facts are no more than a legislative canard. In this case they argue, right wing groups are incrementally inching toward overturning Roe v.Wade. Opponents of abortion hope to fortify a legal position in a Court stacked with Republican Justices. The ban also is an overt attempt by the Congress to circumvent a recent Court holding, albeit a Court holding before Roberts and Alito joined. The stakes are high. Who has gained advantage in the political war over abortion? This Court will soon tell us.
We may have missed the case but we have not lost the lesson. Our Supreme Court is no longer apolitical. Justice is no longer blind. Recent confirmation hearings have more than proved this point. Partisan appointments combined with overtly political amicus curiae briefs no longer even attempt to look apolitical. There are consequences of course. Dissenting in the Dred Scott case Justice Curtis wrote:
“[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean,” (Dred Scott, 1857).
Some say this type of jurisprudence is OK. Others worry that an overly political Court could fatally compromise our essential principles. A political Court cannot escape from CitizenU’s scrutiny. Roberts attempt, the morning after, to hide his political hand did not go unnoticed here. We are still expecting . . .
. . . More from this Supreme Court.
posted by CitizenU @ 8:22 AM
2 comments
2 Comments:
In american government 104 when we covered the supreme court we talked a lot about whether it was controlled by politics just like the other two branches. You mention in the blog about how they timed the partial-birth abortion case until right after the election and how that signifies a shift toward a politicaly inclined court. But we learned in studying some articles that this is nothing new. The Supreme court made a similar mood in the 50's with Brown vs. the Board of education. Brown arrived in the court's docket in 1951, but it was carried over for oral argument the next term and then consolidated with four oter cases argued in 1953, with a ruling not coming in until may of 1954. The reason for hte delay? They were holding it on account of the election! There was a presidential election of 1952 and the court held Brown vs the Board of education until after it because they didnt want it to be a big issue in the presidential race! wild huh? (thats from an article by a political scientist named David O'Brian)
I think the court has to be political. I think it is a necessary sacrifice. The court cannot implement its own rulings, it has no enforcement power, so they can only really gain legitimacy when they have the support of the american people. Alexander Hamilton said in one of the federalist papers that they control neither "the purse" nor "the sword." they need to be careful about what cases they hear and when in order for people to respect them as an institution. There is always a political aspect to their behavior, and it might not be right, but its necessary. "When you have a major social political issue of this magnitude cases timing and public reaction are important considerations to be made"
The abortion case may have been missed on the headlines and the news, but it was reviewed and both positions discussed on NPR.
The phrase "Partial Birth" is not medical terminology and is incorrect in describing a medical procedure.
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