This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

U.S. Supreme Court,
Constitutional Law

Jun. 29, 2022

Reversing Roe and ignoring what we know as people

See more on Reversing Roe and ignoring what we know as people

There's a precept in law which acts as a check on law's full and sometimes misguided application. It is that judges should not ignore, as judges, what they know as people. This precept, designed to keep the law from overtaking our lives, was cruelly and ironically on display through its absence in the Court's reversal of Roe v. Wade.

William Domnarski

A Southland practitioner and mediator, William Domnarski has written a series of books on federal judges and the federal courts.

There's a precept in law which acts as a check on law's full and sometimes misguided application. It is that judges should not ignore, as judges, what they know as people. This precept, designed to keep the law from overtaking our lives, was cruelly and ironically on display through its absence in the Court's reversal of Roe v. Wade.

If this precept had been applied to the argument to reverse Roe, it would have been easy to see the case for what it was, as a misogynistic assault on women's equality. It would have been easy for Alito and company to do this, but they couldn't because they do not honor the norms of the judicial process. As they are not committed to the norms we insist upon, we must acknowledge that they are not judges in the sense of what we expect from judges. They forfeited their claim to be judges when they acted as cultural warriors rather than as judges.

Alito and company shockingly rebuked accepted ideas of what we expect from the law and from the judges who ride herd over it. The law is alive and changes as we do as we continue to understand what it means to be human and to be a citizen. The dissemination of information about who and what we are has helped greatly with this and must find its place in the "acknowledgment" role of the law. It must be alive. It serves us who live in the here and now. This is what the great Oliver Wendell Holmes was getting at when he wrote that the life of the law is not logic but experience. The law reflects us. It does not look at us and scold us.

Not that there is any unassailable logic to the destructiveness of Alito and company in the Roe reversal. We should not forget that their approach of honoring only those rights explicitly set out in the constitution - with its interpretive fanaticism seemingly rooted in a belief in the literalness of the Bible - was wholly concocted in the 1980s by then Attorney General Ed Meese to cabin the judicial function of judges.

From the beginning, judges have interpreted the constitution expansively. It is, after all, a constitution, not a Bible or a last will and testament. The watchword to date, until Scalia first and then Alito and company wreaked their mischief, is, as Chief Justice Marshall wrote, that what we have is "a constitution intended to endure for ages to come, and consequently, to be adaptable to the various crises of human affairs."

Alito and company, with this first of what will likely be more disgraceful decisions, want to turn human affairs upside down. Better put, they want their view on human affairs to bind us all. Wait. Isn't this what the Taliban is about? Is that the world we want? Do we really want kritarchy, which is the system of rule by Biblical judges? That's certainly how Alito and company appear in their reversing of Roe.

Can we really accept what the Alito and company, under the prestige and legitimacy of the Supreme Court, are forcing on us? Can we accept a world in which women are prisoners of their bodies and in which contraception is not available to those who want it? And that's just the beginning. In the same spirit, can we accept a world of racially segregated schools? Brown v. Board of Education is a prime example, though it was not explicitly invoked, of the application of the precept that judges as judges cannot ignore what they know as men. Who could have possibly thought, in their heart of hearts, that separate schools for blacks would not leave black students worse off in life? The justices knew it as people and had to act on it, no matter the legalistic arguments.

The precept acknowledging what we know as people acts as a counterbalance to the disingenuousness of Alito and company abdicating responsibility, with their claims that they are faithfully applying the law. How stupid do they think we are? The decision was nothing more than, as Charles Fried put it, an act of vandalism. Nothing can excuse it as the disgrace that it is.

There are other applications at work here of the precept that judges should not ignore what they know as men. The first is that the Roe reversal is only a pretext to attack women's equality, which any reasonable person would know to be wrong and would scotch no matter the law at issue.

The second is that Alito and company breached the fundamental judicial principle of not allowing their decisions to be driven by personal motives.

We must ring the alarum bell and point out that Alito and company did nothing but act on their own personal whims and preferences as cultural warriors. And in doing so they forfeited their right to act as judges for the rest of us.

#368181

For reprint rights or to order a copy of your photo:

Email jeremy@reprintpros.com for prices.
Direct dial: 949-702-5390

Send a letter to the editor:

Email: letters@dailyjournal.com