Family and friends aside, America is the best thing ever to happen to many of us. This is why I get emotional over the travesty of Trump’s government. He gets wrong so many things that I love about this country.
Foremost, the Constitution has been an incredibly ingenious document. Not perfect for sure, but resilient; so far unbreakable. Through the Constitution, the people of America have steered the nation through crises which threatened the continued existence of the republic. Fundamentally, the Constitution is nothing without the people who interpret, study and honor it. It will never replace the King James version for some or the Torah and the Qaran for others. For me, the Constitution shares top billing with all of them.
The Constitution was conceived as a compact between and among states. Alabama reminded us just last week that states are sovereign, making their own laws, even if they are out of sync with the Constitution. The three branches each have an establishing article: Congress is set forth in the first part; the executive the second; and judiciary the third. Congress makes laws, the Executive carries them out and Judiciary rules on conflicts between the two branches.
The judiciary has a busy season ahead of it, if the White House continues its siege against the Congressional hordes. Yesterday, Rep. Elijah Cummings’ House Oversight Committee prevailed in its onslaught against the obstructive administration. See The Sun Poked Through, 9/20/2019. Aaron Schiff and Jerry Nadler are teeing a few up as we speak.
This case and some others likely will reach the Supreme Court; a few no doubt will be consolidated for a decision. Trump calls it “his Court.” He may be in for a surprise. The judges don’t even think it is their Court. They are its caretakers only.
Even the most extreme members of the bench have lived in the law for decades. Its precept of stare decisis (let the decision stand) is the cornerstone of our laws. Judges tend to follow precedent. A court would rather create an exception to a strongly-held law, such as Roe v. Wade, the 1973 decision the right of a woman to decide whether or not to abort an unwanted pregnancy and in passing decriminalizing the performance of abortions by doctors, rather than overturn it.
When the new wave of anti-abortion laws reaches the high court, the media’s noise will be about overturning Roe v. Wade. In Planned Parenthood v. Casey, the Court had an opportunity to recall the Roe decision but refused to do it. Some of the qualifiers and restrictions under the Pennsylvania law were adopted; others stricken. Thus began the death of Roe by a thousand cuts. The pro-life movement has attacked abortion practice using Planned Parenthood‘s lower standards to show to justify a restriction. Most likely, Roe will be so eviscerated as to remove any semblance of control from the woman undergoing the procedure, assuming she can find a doctor willing to give perform one. Trump will say that Roe’s been overturned, and the pro-choice movement will deny it. It will depend on the state, because ( improbably) it is a state by state decision.
The Court will hear many other cases, some likely to rest on the meaning of the Constitution. The prospect does not promise judicial consensus. In some cases, though, the Judges should see the Constitutional situation for what it is. Nixon’s tape case (1974) was argued before the same court as Roe v. Wade. The bench split 7-2 on Roe with a dissent and a number of concurring decisions. Nixon was unanimous 8-0, Justice Rehnquist having recused himself.
Even when the Constitutional issue is difficult (Nixon’s was not, nor will Trump’s be) the Justices tend to put forth a united front. The Court was the final backstop for the conflict between Nixon and Congress.
Trump has restocked the current Court with right leaners. The Chief has flirted with the center to maintain the Court’s credibility. At least five judges will condemn Trump’s efforts to stonewall Congress. Even Thomas, Alito, Gorsuch and Kavanaugh may recognize that setting a good precedent is more important than the expedient alternative. Even if the Court votes to quash Congress’s investigative authority, Congress may nevertheless claim victory as long as the case is honestly fought, and the arguments are sincere and well-considered.