As Americans, we may have our differences, but at the end of the day, we’re all in this together. Right?
America has never been easy.
Long before any shots were fired at Fort Sumter, the Founders struggled to find consensus across a vast territory of towns, farms, and wilderness.
Since the earliest days of America, there has been a tension between the power of the federal government and the notion of state rights, and many of the issues we still struggle over today.
The arbiter in all of this has been the Supreme Court.
As early as Marbury v. Madison, Dred Scott v. Sandford, Plessy v. Ferguson, Brown v. Board of Education, Loving v. Virginia, Roe c. Wade, Citizens United, Obergfell v. Hodges, the judges advanced liberties or contracted them depending on the makeup of the court.
With a changing of the guard from left to right, today’s Supreme Court is determined to undo the work of its predecessors. The left is understandably nervous, just as the right was in the days of Earl Warren and Thurgood Marshall.
From the beginning, the Supreme Court has been used as a check by one party ruling the other. Coming out, John Adams appointed a slew of “midnight judges” to slow down the advance of Jeffersonian democracy. What is new is the relentless attack on the Supreme Court as an institution.
Readers of this column will know that I believe former President Trump damaged this country and continues to inflict damage. It’s more than “mean tweets”. Donald Trump has tampered with the integrity of institutions, including the courts, which have served us well, albeit imperfectly, for 200 years. The January 6 Committee has now proven that our 45th President attempted to nullify the 2020 election through illegal means.
And yet, in the long term, Donald Trump’s greatest impact may very well be the many judicial choices he has had at the Supreme Court and at the appellate levels.
The recent reversal by the court of Roe v. Wade points it out.
Pro-choice icon Ruth Bader Ginsburg said Roe moved ahead of the political process as the American people reached consensus on abortion.
“Roe v. Wade,” RGB said, “did not invite any dialogue with lawmakers… In 1973, when Roe (was) published, abortion law was changing across the country. As the Supreme Court itself noted, there was a marked trend in state legislatures “toward liberalizing abortion laws.”
Texas Senator Ted Cruz recently used the same argument to criticize the legalization of same-sex marriage, stating that “states … were moving … to allow same-sex marriage. Other states were about to allow civil partnerships… If the court hadn’t ruled, the Democratic process would have continued to work.
But even Cruz recognizes the danger of judicial permutations.
“You have a ton of people who have entered into same-sex marriages, and it would be more than a little chaotic for the court to do something that somehow disrupts those marriages,” Cruz said.
And this point is critical. The Supreme Court should not operate in a vacuum. America is not a legal theory or philosophy, it is home to a third of a billion living and breathing people. While the rule of law is hugely important to a civil society, so is understanding how established and troubling law can ruin people’s lives.
While we shouldn’t be prisoners of the past, neither should we throw away hundreds of years of hard-earned wisdom and tried institutions because we are angry at the moment. We can’t be outraged by a mob storming the Capitol on Jan. 6, but okay with a mob burning downtown Portland or threatening the lives of judges. Each of us has a role to play in keeping the United States united.
Personally, I choose not to use my right to vote to deprive someone else of their right to marry or carry a pregnancy or not. I know many of you feel differently. I don’t hate you for that. We are all Americans. We have the right to think differently.
Doug McIntyre can be reached at: [email protected]