Viewpoint: L. Phillips Runyon III – The third branch hits the third rail

  • L. Phillips Runyon III  FILE PHOTO

For the Ledger-Transcript
Published: 5/12/2022 10:38:58 AM

A few weeks ago (“We can do better than this,” April 5), I took a swipe at Senate Judiciary Committee members who distorted Supreme Court nominee Ketanji Brown Jackson's record in order to make her sound her goal in life is soft-pedaling child pornographers. That wasn't remotely true, of course, but it didn't keep 47 Senators from voting against her primarily on that basis.

Now we've learned that Supreme Court Justice Samuel Alito has authored a draft opinion that, if issued, would overrule the court's 1973 decision in Roe v. Wade, which recognized a federal constitutional right for women to have autonomy over their own bodies and choose abortions. I want to highlight a couple of points.

First, holding Senate hearings to examine nominees for federal judgeships, particularly the Supreme Court, is a waste of time if the purpose is to learn anything about where nominees stand. If the purpose is to show the American people what a new justice looks like -- or to give the senators on the Judiciary Committee a chance to create sound bites for their supporters -- then fine, but let's not kid ourselves otherwise.  

That these hearings are a farce has been confirmed by at least five current justices who said during their televised hearings that Roe was "settled law" and an "established precedent" but are now frothing at the mouth to overrule the decision. The nominees were under oath, so there's a serious argument to be made that signing on to the opinion would constitute perjury and/or contempt of Congress. Of course, Alito’s opinion talks about Roe being "exquisitely" wrong, but he made the same "settled law" pronouncements at his own hearing 16 years ago. 

Next, Alito says that there's no reference to abortion as a protected right in the Constitution. That's true, but then there's no mention of women in the Constitution at all. I guess that means no women's rights unless they're spelled out by a constitutional amendment, like the one about their voting rights that it took more than 70 years to convince enough men to support.

There's an oft-neglected Ninth Amendment, however, that says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That was James Madison's attempt to placate those who suggested more than the 10 original amendments and who were concerned that their proposals were being disregarded. Since then, the court has recognized many unwritten personal rights, including same-sex and interracial marriage, and before those, the right to privacy in one's home to use contraception.  If abortion can't also stand as a protected right, then those other rights could be in jeopardy. I guess that's the point.

Finally, Alito says the decision about abortion rights should be left to Congress or states to regulate. Yet, even after a unanimous Senate voted in 2006 to reauthorize Section 5 of the Voting Rights Act, the Supreme Court in 2013 held unconstitutional the provision that required states with histories of discriminatory voting laws to obtain pre-clearance for any changes in those laws. 

If the leaked decision, once issued, overrules Roe, the court will have finally shown its true colors as a political body that's unfettered to the electorate. And that would not only be a shame, but an outcome that would take several generations to overcome, if ever. In fact, where's the rightful successor to our own Justice David Souter?

L Phillips Runyon III is a Peterborough attorney and the former presiding justice of the 8th Circuit Court.


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