Reshaping the Court's Balance of Power

By Ken Concannon
Herald Columnist
(From the issue of 10/13/05)

For the past 2,000 years the history of Western civilization has been inextricably linked with the history of Christianity. And the oft repeated lesson of that history is that good always triumphs over evil — eventually.

For the past three decades this country has lived in the shadow of a Supreme Court decision, Roe v. Wade, that has destroyed families, weakened the moral fabric of our country and claimed the lives of approximately 45 million unborn children. Recent events, however, suggest that the "good triumphs over evil" lesson of history is starting to repeat itself again.

With the death of pro-life Chief Justice William Rehnquist and the retirement of pro-choice Justice Sandra Day O’Connor, a pro-life president and a predominantly pro-life Senate have been given an opportunity to reshape the balance of power on the U.S. Supreme Court. The abortion industry and its advocates in the Senate know this, and they are terrified by it.

To fill the Supreme Court vacancies, the president has nominated what I believe to be pro-life strict constructionists, not unlike Justices Antonin Scalia and Clarence Thomas: John Roberts to fill the Chief Justice position; and Harriet Miers to replace Justice O’Connor. Roberts has already been confirmed by the Senate, and has begun serving as chief justice.

As I write this, the nomination hearings for Harriet Miers have yet to begin. When they do begin I suspect they will, in all probability, echo abortion industry concerns voiced during the Roberts’ nomination hearings.

In his questioning of Supreme Court chief justice nominee Judge John Roberts, Senator Arlen Specter, R., Pa., said that he believed that Roe v. Wade has become part of the cultural fabric of this country. In a sense the pro-abortion senator from Pennsylvania was agreeing with an assessment made by the late Pope John Paul II not that long ago. Both men recognized that Roe had affected the culture of our society. But the Senator described the cultural change as "choice," and the late Pope used a different term — "death."

Senator Specter was trying to make the point that Roe v. Wade was now settled Constitutional law, that the principle of stare decisis, "to stand by that which is decided," should preclude any attempt to overturn Roe through the courts. He even produced a chart listing a number of decisions that reaffirmed Roe.

In response to that assertion Judge Roberts explained, ever so graciously, that whereas stare decisis is pre-eminent in decisions relating to statutory law, it’s not all that important in decisions that affect the meaning of the Constitution. Wrongly-decided decisions — like the Plessy v. Ferguson decision that put the power of the Constitution behind the awful "separate but equal" excuse for segregation — can and should be overturned, regardless of stare decisis.

With the addition of John Roberts and, hopefully, Harriet Miers to the Supreme Court to fill the vacancies created by the death of Rehnquist and the retirement of O’Connor, we may begin to see some erosion of the awful Roe decision within the next year.

One of the cases that will most likely be on the court’s docket during the next Supreme Court session will be a consideration of federal and state bans against the hideous partial-birth abortion decision. Five years ago, in the Sternberg v. Carhart decision, five Supreme Court justices —Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg, David Souter and the soon to be retired O’Connor — decided that bans on partial-birth abortion were somehow unconstitutional. Four Justices disagreed with them — Antonin Scalia, Clarence Thomas, Anthony Kennedy and the late William Rehnquist.

In his dissenting opinion Justice Scalia described the procedure as "so horrible that the most clinical description of it evokes a shudder of revulsion." All three of the surviving dissenters in this case — Scalia, Thomas, and Kennedy — felt strongly enough about this terrible decision to write separate dissenting opinions, and all three will again consider the issue.

If Roberts and Meirs join Scalia, Thomas and Kennedy in the "shudder of revulsion" we may once again see a five-four vote on partial-birth abortion. Only this time, the scales will be tipped in favor of life.

Concannon is a freelance writer from Manassas.

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