His thoughts — Courts in the news
Published 12:00 pm Friday, May 13, 2022
As we learned in elementary school, our founders wisely divided government into three sections. Legislative, Executive and Judicial. Each was established with distinct responsibilities. The legislative branch was limited to only proposing to create and change laws. The executive branch could not create law but rather was to administrate the laws and Constitution. The judicial branch was to act as umpire, calling balls and strikes. Their responsibility is called upon to determine if the legislative branch exceeds the Constitution with legislation they pass. Likewise, when the executive branch takes action that exceeds the authority granted in the Constitution or laws passed by the duly elected representatives of the people. Each branch sometimes ignores the rules the Constitution established.
BALLS, STRIKES AND OFFSIDES
Our forebears had knowledge of how European governments had erred in past generations. With that knowledge, they created what should work well and did work for generations. However, over time, the hard and fast rules have been eroded. Presidents have always been tempted to take steps that the courts should have blocked. Notably, I remember when President Bush signed duly passed legislation but with the disclaimer that he would not enforce some parts of the law. He should have vetoed the bill and returned it to Congress to override his veto or adjust it in such a way that he agreed. President Obama, President Trump and President Biden have all issued executive orders that exceeded their authority.
Speaker of the House Pelosi, rather than shepherding legislative proposals through the House of Representatives, has decided that she wants to take over the role of the executive branch. The Justice Department of the executive branch is empowered to investigate and bring charges against those who break the law. Pelosi, however, for political reasons, has chosen to make one House of Congress the investigators.
I offer this in response to the leak from the Supreme Court last week relating to abortion. I understand that there are many thoughts on the issue of abortion, but that is a discussion for another time. The issue currently is process. The way the Supreme Court works follows a standard process. The justices hear oral arguments and receive the best arguments for each case they agree to hear. Each justice then reaches their own preliminary conclusions. They then reach out to the other justices. As the process evolves, a majority of the justices agree on enough points that a final opinion is written. Meanwhile, those that do not agree will write dissenting opinions. This process may require many re-writes before it is made public.
However, someone decided to release to the news media a version of one case that may, or may not, have been agreed upon or finalized. There is no clear understanding of who or why the process was short circuited. The assumption is that it was done for political purposes. The dilemma this creates could easily effect many cases in the future. The trust and faith, which is so important in the process, has been shattered. Each justice now must be concerned about who they can trust among the other justices and their clerks. This will inhibit their ability to work together.
As often is the case, when one branch exceeds its authority, it comes back to bite the American people. Forty-nine years ago, if the Supreme Court had not chosen to make law on the bench, the issue of abortion might not be an issue in 2022. In 1973, an activist court decided to find something in the Constitution that was not even an issue when the Constitution was written. They erroneously chose to hear a case that is known as Roe vs Wade. They should have left the issue to the legislative branch of either the state or federal level.
The late Justice Ginsberg, who supported abortion rights, criticized the 7-to-2 Roe decision both before and after she joined the high court. She suggested a ruling protecting abortion rights would have been more durable if it had been based on the Equal Protection Clause of the Constitution — in other words, if it had focused on gender equality rather than the right to privacy that the justices highlighted.
If the ruling does overrule Roe, there will be ample opportunity for all to be heard on the issue before any law is changed.
Frank Ruff Jr. represents Lunenburg in the state Senate. His email address is Sen.Ruff@verizon.net.