Donald Trump has promised to nominate Supreme Court justices in the mold of the late Justice Antonin Scalia, although when asked in February who his favorite justice is, Clarence Thomas was his pick.
The two justices shared their Catholic faith in common, the same morals, the same values — but their approach to constitutional interpretation diverged. Scalia abhorred any form of judicial activism, whether from the Left or the Right. To him, the Constitution set strict parameters on judges' decisionmaking power, and any judge who exercised powers outside his ken was abusing his position.
This is what Scalia saw in Roe v. Wade, a case roundly criticized by conservatives and liberals alike for being an exercise in "raw judicial power," in the words of Justice Byron White.
"The Court simply fashions and announces a new constitutional right for pregnant mothers," White had dissented in Roe, "and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes."
John Hart Ely, a respected legal scholar at Yale, and also pro-abortion, commented:
What is frightening about Roe is that this super-protected right [of abortion] is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-a-vis the interests that legislatively prevailed over it. And that, I believe … is a charge that can responsibly be leveled at no other decision of the past 20 years.
Laurence Tribe, law professor at Harvard and another abortion advocate, said of the Court ruling, "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."
Roe was an essentially political decision, Scalia thought, not a judicial decision based on the Constitution. No wonder, then, that the public — who once viewed the Supreme Court largely as a bastion of impartial, unbiased legal decisionmaking free from the sway of public opinion — began to see the High Court after Roe as a political body, able to be influenced and lobbied by its "constituents" just as any other political body can.
"We can now look forward to at least another term with carts full of mail from the public, and streets full of demonstrators, urging us — their unelected and life-tenured judges who have been awarded these extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will — to follow the popular will," Scalia complained in a later abortion case.
Scalia supported overturning Roe, returning to the previous legal regime, where individual states decided the issue through the democratic process — just as it was in the time of the Framers. The federal courts should have no say in the matter of abortion one way or the other, because "the Constitution says absolutely nothing about it," according to him. Indeed, just before Roe, a little more than half the states had already legalized abortion, and others were moving in that direction. The result of Roe, as legal scholars have noted, was to polarize the issue, causing each side to become more deeply entrenched, leading to a bitter abortion battle that has raged for more than 40 years.
"Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict," Supreme Court Justice Ruth Bader-Ginsburg, the Court's most ardent abortion supporter, has observed.
Abortion, so long entrenched in law, politics and the public consciousness, has now risen to the level of a super-right, with special rules all its own. Justice Thomas noted the fact in his blistering dissent in Whole Woman's Health v. Hellerstedt, the decision this year striking down a pro-life Texas law. That opinion exemplified "the Court's troubling tendency 'to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue,'" he lamented.
"I write separately to emphasize how today's decision perpetuates the Court's habit of applying different rules to different constitutional rights — especially the putative right to abortion," he added.
Like Scalia, Justice Thomas would overturn Roe — but unlike Scalia, he would not necessarily favor a return to the previous regime. Thomas, a Natural Law jurist, believes the Constitution is based on transcendent principles that derive from the Creator Himself, which find their highest expression in government in the Declaration of Independence, with its language about inalienable rights bestowed on creatures by "their Creator."
Thomas spoke more about Natural Law jurisprudence before he was appointed to the High Court than after, but other Catholic jurists have continued the theme. Hadley Arkes, for instance, has argued eloquently for application of Natural Law principles to the Constitution; where Scalia would argue that jurists must apply the "original understanding" of the Framers to the Constitution (no matter how faulty that understanding might be, as influenced as it was by Enlightenment Rationalism), Arkes says judges must look to an objective ground of right and wrong independent of local customs or mores — one must look, in other words, to Natural Law, i.e., Divine Law, which holds the last word in constitutional interpretation.
The natural law jurist would thus easily find a right to life for the unborn child in the Constitution, specifically in the 14th Amendment, which protects each "person" from being deprived "of life, liberty, or property, without due process of law."
"[W]hat is the ground of principle on which the law may remove a whole class of human beings from the circle of rights-bearing beings who may be subject to the protections of the law?" Arkes asks. "Why have so many conservative judges come to assume that the Constitution has nothing to say about the principled grounds on which legislators may withdraw the protections of the law from those small human beings in the womb?"
In the next instalment: How pro-life is Trump's short list of Supreme Court nominees?
Watch the panel discuss the political stakes in "The Download—Delegitimizing Trump."