The past weekend has been one of a lot of thought. Unfortunately, some of those thoughts aren't exactly appropriate for a family newspaper.
I love this country. But right now, this is not the country we should want ... unless you're a person who doesn't care about freedom and rights for others, as long as you get what you want.
Funny, I don't think that's what was intended by the Declaration of Independence and the Constitution. But then, I guess if we're going by the beliefs at the time those documents were written, well ... let's just say that more than women are worried right now.
I'm not a lawyer; my mom briefly wanted me to be one, but I didn't have the passion for the law many of my friends who did become lawyers and judges had. However, that doesn't mean I don't take an oversized interest in some rulings. Citizens United was probably the first case that I really started to worry about, and rightly so, I'd say, seeing what an influence money has had on the election process since then. People like me without vast sums of money have only our voices to try to sway people, and it just doesn't seem enough anymore.
There has long been debate about activist judges, but without them, we might not have had decisions like that in Brown v. Board of Education. As Brandeis University's International Center for Ethics, Justice and Public Life notes, "Since the legislature in a democracy makes law by majority vote, it might establish laws that deny rights to minorities who lack the numbers to block passage. The judiciary's willingness to actively enforce minority rights serves as a check on this possibility."
Had the Brown court used the same reasoning as the current court in recent decisions, segregation might still be legal, and the Civil Rights Act of 1964 might never have been passed. I'm sure there are people out there who wouldn't mind a return to that time, but I would hope most of us would find that thought unconscionable.
So judicial activism can be a good thing, especially if you are among those who win a dose of freedom.
But what I've seen in the most recent cases, I think, would be the dark side of judicial activism. It would be hard to argue that the majorities in cases like Kennedy and Dobbs weren't using their personal views about public policy in those cases.
The sniping in the rulings alone is enough to cause worry. This is not how a sober judiciary behaves.
While some may view Kennedy as a victory for school prayer, it's not really ... if you're a Christian who believes only Christian prayer should be allowed. Aside from the fact that the ruling gave the impression that Joseph Kennedy prayed alone on that field (which he didn't, and the fact that he was the coach lent a coercive quality to that midfield prayer), it would seem to mean that public school employees of other faiths could do likewise. I look forward to the resulting cases from Muslim, Jewish and other teachers who won't receive such a warm reception.
Like with Nativity scenes on public land, if you open it up to one religion, all--religious or not--must be able to have the same privilege.
And then there's Dobbs, which relies heavily on history, but not precedent, purporting to come down on the side of what the Constitution meant when it was written (a dangerous idea, considering that Blacks, women, non-landowners, etc., had no real rights then).
Carlos Lozada wrote in The Washington Post: "The Dobbs majority opinion, authored by Justice Samuel Alito, dismisses Roe as an 'elaborate scheme' that was 'concocted' to divine a constitutional right, and assails the 1973 decision with adverbial abandon, calling it 'egregiously wrong,' 'exceptionally weak' and 'deeply damaging.' And while the Dobbs majority asserts that Roe's grasp of history 'ranged from the constitutionally irrelevant ... to the plainly incorrect,' it nonetheless makes selective use of U.S. history and tradition, and takes refuge in portions of the very rulings it has now overturned."
Weaknesses of Roe aside (I agree with Ruth Bader Ginsburg that it was too far, too fast and decided on the wrong basis--privacy rather than equal protection), it would seem to me (and to Chief Justice John Roberts in his concurrence) that the Dobbs court did just what the Roe court did, and went too far.
I've said many times that while I'm pro-choice, I'm not rah-rah abortion (very few are); while I likely would not have chosen it for myself, my beliefs don't mean someone else shouldn't have the right to that choice. In her 1993 confirmation hearings, Ginsburg said of a woman's choice on abortion, "It's a decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices."
So forgive women in red states if they feel they're being robbed of the ability to make their own choices, and not just in the reproductive realm. And for those celebrating: You've moved the problem and made it less safe, not solved it.
What's that thing about unintended consequences?
Assistant Editor Brenda Looper is editor of the Voices page. Email her at blooper@adgnewsroom.com. Read her blog at blooper0223.wordpress.com.