The Supreme Court, whether in the US or Israel, should serve as the most enlightened and elitist branch of government -- as an explicit stopgap against the popular will. The Court should interpret the Constitution to achieve this elitist objective in the American setting. In the Israeli context, it should fall back on the Basic Laws.
Over the years, the US Court has often been in the hands of intolerant counter-elites. Hence in interpreting the Constitution, the Court found ways to justify slavery in Dred Scott v. Sandford (1857) or after the Civil War to uphold anti-miscegenation laws in Pace v. Alabama (1883) and to safeguard Jim Crow in Plessy v. Ferguson (1896).
So, much depends NOT on what is written in the Constitution but on WHO sits on the Court. Reactionary justices will read the same Constitution to defend backward-looking positions. Open-minded majorities will employ the Constitution to achieve tolerant ends.
Nor does it matter to me that a plurality of Americans say abortion should be legal.[1] The rights of the individual should not be contingent on raw majority rule. Since the masses – which are inherently the most intolerant element in any polity – have the most influence at the local and state levels, the Court ought not to relegate human rights to the legislatures of the various states.
This brings me to one of the most fraught issues in American politics though practically a non-issue in the UK and Israel.[2] When on June 24, 2022, the US Supreme Court’s Trumpian majority used the Mississippi case, Dobbs v. Jackson (2021), to overturn Roe v Wade (1973), Israelis who share my values were incredulous.[3]
Roe had not only decriminalized abortion but made a woman’s choice to terminate her pregnancy during the first trimester a constitutionally protected right, with increasingly stringent restrictions kicking in further along in gestation riding on the fetus’s viability outside the womb.
As had been feared, Trump appointed justices – Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch aligned with Clarence Thomas and Samuel Alito, the Court’s staunch conservative bloc, and conservative-leaning Chief Justice John Roberts to overturn Roe v. Wade.[4] Roberts did so reluctantly; the Trumpians zealously.
There was little the Court’s diminished tolerant camp comprised of justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan could do but dissent. Breyer and Kagan, it is worth noting, are Jewish.[5] Upon Breyer’s retirement in July 2022, he will be replaced by Biden-nominee Associate Justice Ketanji Brown Jackson.[6]
The forces of intolerance will remain in the majority. In fact, Thomas hinted that he saw Dobbs v. Jackson as a first step and that were it up to him, other federal protections would be removed. These could include the right to purchase condoms and other contraceptive devices, homosexual marriage, indeed consensual homosexual sex, and employment and housing protections gays now enjoy nationwide.
Some say that abortion should be treated uniquely. Peggy Noonan, one of my favorite columnists, argues in The Wall Street Journal that of all hot button issues, abortion should, on an exceptional basis, be left to the states and their varying moral values. [7] That sounds reasonable, but you would need to be prepared to live with the idea that basic protections apply only to Americans who live in blue or Democratic-dominated states.
To my mind, Roe v Wade had struck the right balance between fetus (as a potential life) and mother. Naturally, like many people who are pro-abortion or pro-choice, I would prefer pregnancies be terminated only rarely and not as a form of birth control. But that reflects my personal values. Regardless, it is too bad that abortion will now be re-criminalized in many red or Republican-dominated states.
Whether on abortion or guns,[8] the US Supreme Court is once again in the hands of counter-elites. Gloating Trumpians might want to consider that the Court could one day fall into the hands of woke counter-elites attentive to the will of their electorate.
That is why I am saying the Court should not cater to the popular will -- but to the highest (if unpopular values) of tolerance and forbearance.
[1] https://www.pewresearch.org/fact-tank/2022/06/13/about-six-in-ten-americans-say-abortion-should-be-legal-in-all-or-most-cases-2/
[2] Abortion
is available legally in the UK and in Israel. In Israel, vetting committees
must approve abortions on a case-by-case basis. Disapprovals are extremely
rare.
[3] Dobbs
v. Jackson Women's Health Organization is a case that involves a Mississippi
statute that banned abortion after 15 weeks ignoring the viability standard of
23-24 weeks set by Roe. https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/
[4] Kavanaugh
had told the US Senate during his confirmation hearing that Roe v. Wade was “settled
as precedent.” Barrett was more circumspect in public testimony. Gorsuch emphasized that it was worthy to be
treated as a precedent.
[5]
Breyer, who announced in January 2022 his intention to retire, has attended
Jewish communal fundraising dinners and is married to a non-Jewish upper-crust
British woman https://www.jta.org/archive/clinton-nominee-for-high-court-seen-as-sharing-jewish-concerns
He has attended Yom Kippur services https://www.jta.org/archive/clinton-nominee-for-high-court-seen-as-sharing-jewish-concerns Kagan practices Conservative Judaism. https://www.timesofisrael.com/supreme-court-justice-elena-kagan-talks-of-her-very-strange-jewish-upbringing/ Sotomayor is of Catholic heritage but is
discreet about her religiosity perhaps because she is divorced. Chief Justice
Roberts and Justices Scalia, Thomas, Alito, Kavanaugh and Barrett are all
mass-attending Catholics. Gorsuch was raised Catholic but has attended
Episcopalian services.
