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The row over Roe v. Wade is heating up and the U.S. Supreme Court is powerless to stop it. In fact, it just added fuel to the fire.
This week's report of a leaked draft opinion indicates the Supreme Court is prepared to overturn Roe. This leak in itself is shameful — a tragic and historic breach of trust and integrity for the Supreme Court.
The case at hand is Dobbs v. Jackson Women's Health Organization, which concerns a Mississippi law banning most abortions after 15 weeks. Under Roe, no state can prohibit abortions before a fetus is viable outside the womb at 24 weeks.
The draft opinion is for a sweeping ruling overturning Roe, changing the constitutional contours of abortion rights in America.
The birth of Roe a half-century ago did nothing to quell the conflict over abortion. It actually intensified it. Today our country is evenly divided on the issue, though 70% of all Americans don't think Roe should be overturned. Both sides' beliefs are sincere and entrenched.
The vast majority of cases the Supreme Court accepts for review involve a conflict of legal interpretation among lower courts. These rarely have simple resolutions. The issue of abortion only compounds legal complexities with one of America's most contested social and moral concerns. Asking the Supreme Court to solve, to everyone's satisfaction, this intractable, acrimonious dispute is useless.
Even many who support Roe's result disapprove of its reasoning. Before her elevation to the Supreme Court, Judge Ruth Bader Ginsburg in a 1993 lecture at New York University Law School criticized the Roe court for going too far by "blanketing the subject, [with] a set of rules that displaced virtually every state law then in force." She thought "a less encompassing Roe, one that merely struck down the extreme Texas law and went no further … might have served to reduce rather than to fuel controversy."
In 1997, a 5-year-old girl concerned with justice penned a letter to by-then-Justice Ginsburg. Naomi Shavin wrote: "You are like King Solomon. You both decide stuff. He was the smartest King … . Are you in charge of all the people in the United States of America? Have you ever made a mistake?"
Ginsburg replied, "I am not in charge of all the people in the United States, but I work hard to do my judging job well. And yes, I have made many mistakes, but I try to learn from them so that I will not make the same mistake twice."
Ginsburg's response holds true for all justices. They make mistakes. But they endeavor to serve justice. As Alexander Hamilton explained in Federalist No. 78, the Supreme Court has "no influence over either the sword or the purse … neither force nor will, but merely judgment."
Moreover, while Supreme Court rulings can affect the whole nation, in the larger sense they can't unify or even appease everyone in our diverse democracy.
Even if our justices had Solomon's wisdom it wouldn't help here. What would have happened, with the two mothers claiming the same baby, had neither balked when the King proposed splitting the baby with his sword? His "compromise" would have horrified all. What happens when both sides refuse to yield?
In "The Causes of Popular Dissatisfaction with the Administration of Justice," legal scholar and former Dean of Harvard Law School Roscoe Pound proposed: "Justice, which is the end of law, is the ideal compromise between the activities of all in a crowded world … . When the community is at one in its ideas of justice, this is possible. When the community is divided and diversified … [with] conflicting ideas of justice, the task is extremely difficult."
That was in 1906.
In 2022, the Supreme Court is simply powerless to turn down the heat on an issue making our democracy resemble a pressure cooker more than a melting pot.
Healthy democracies rest on thoughtful, good-faith debate. Given this, it's worth reflecting on the storied friendship between Ginsburg and conservative icon Justice Antonin Scalia. Both were titans of the Supreme Court. Both held distinct views. Yet their shared humanity and humility offer a degree of hope that we can manage our differences.
In a 1990 roast of Ginsburg, Scalia said facetiously, "Ruth and I were drawn together, of course, by our similar philosophical proclivities ... ." After listing some of their many differences, Scalia reconciled them with something more important.
"We have formed a very close friendship, and one of us must be mistaken. Or perhaps both."
Steven D. Reske is an attorney in Minnetonka.
