Great Britain’s parliamentary democracy has no constitutional text, but rather a “constitution” composed of centuries of legal traditions and precedents. So when British courts make grave mistakes, those mistakes can be fixed, more or less readily, by Parliament. The American situation is quite different. Given a written constitution and the principle of judicial review, grave mistakes by the Supreme Court are exceptionally toxic and hard to remedy, as three wrongly-decided cases illustrate.
In 1857, the Court declared in Dred Scott v. Sanford that the Constitution recognized no rights inherent in black people the white majority was bound to acknowledge – and thereby accelerated the process of national dissolution leading to the Civil War, in which over 700,000 Americans killed each other. Plessy v. Ferguson, which upheld the constitutionality of racially segregated public facilities in 1896, kept Jim Crow alive, delayed the full legal implementation of the 13th and 14th amendments, and poisoned the Democratic Party for generations by giving inordinate weight within party counsels to segregationists, who cowed even Franklin D. Roosevelt. It took a half century of civil rights struggle and the 1964 Civil Rights Act to begin repairing the damage Plessy had done.
Then there was Roe v. Wade and its companion case, Doe v. Bolton: the 1973 Supreme Court decisions that invented a constitutional right to abortion throughout a pregnancy. Denounced by Justice Byron White in his dissent as “an exercise in raw judicial power,” Roe’s effects on American political culture have been as toxic as Dred Scott and Plessy.
Defending Roe’s abortion license has become a prime imperative for the national Democratic Party. And because of that, far too many Catholic politicians, including the Democratic presidential candidates in 2004 and 2020, have put a canine fealty to a shabby judicial diktat above the truth of science (the product of human conception is a unique human being) and the moral truth we can know by reason (in a just society, innocent human life is protected in law). Roe has also jeopardized religious freedom and the rights of conscience, corrupted the medical professions, and eroded the authority of the states to regulate medical practice.
In an attempt to buttress Roe, a three-judge plurality in 1992’s Casey v. Planned Parenthoodcheapened the “liberty” to which the Founders pledged their “lives, fortunes, and sacred honor,” reducing it to a sheer personal willfulness that turns “I Did It My Way” into the unofficial national anthem. And thanks to Roe, Supreme Court nomination hearings have become exercises in character assassination with no holds barred.
While political scientists may wonder why the defense of Roe’s abortion license has become so fevered, comparative religious studies may provide an answer: for those who worship the totem of the imperial autonomous Self (the false god of “Me, Myself, and I”), the abortion license has become sacramental – an outward sign of the inner reality of women’s autonomy; an outward sign, for men, of their acquiescence to forms of feminism that promote freedom-as-autonomy.
Unquestioning faith in that which is unworthy of faith darkens the mind, so that otherwise intelligent people are blinded to the reality of things. This was true of primitive religions, and sadly enough, similar phenomena are at work today. For other than a debilitating myopia caused by the credulous belief that abortion-on-demand is a “civil right,” why would so many black political leaders support a practice that, thanks to Planned Parenthood’s inner-city “reproductive health” clinics, has caused the mass slaughter of unborn black children, thereby making African Americans the second-largest minority group in the United States?
Today’s Supreme Court agitations involve many issues, including the oversized role of the judiciary in our constitutional order. Those issues deserve a serious, thoughtful, public airing. For many of those bending every effort to defeat Judge Amy Coney Barrett’s nomination to the Court, however, the meta-issue will be the defense of an abortion license they not only support, but revere. And that ultramundane reverence explains why their efforts will be so vicious. False gods often underwrite human cruelty.
A Supreme Court that hollows out or even reverses Roe v. Wade will not settle the American abortion debate; it will return the issue to the states, where there will be mixed results for the cause of life. But a post-Roe America will have expelled a rotting bone from the national throat. And that America will then have the opportunity to demonstrate, state by state, whether we are a people capable of morally serious democratic deliberation.