The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case … As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.
The High Court ruled on WHOLE WOMAN’S HEALTH v. HELLERSTEDT, 136 S. Ct. 1001 (2016). In his dissenting opinion, Justice Thomas points out that the Supreme Court, has, in effect, overthrown the body of the constitution and ignored the limitations of the rule of law.
Notice this is the same Court which has no difficulty in restraining and restricting political speech in the context of campaign finance regulations, despite that this is enumerated in the First Amendment, nor of finding it Constitutional to have Catholic nuns fund abortions, despite the ‘Free Exercise’ clause of that same Amendment, nor in decreeing that it is lawful for the federal government to compel citizens to buy a private commercial product, such as health care insurance, on the grounds that it is the same as levying a tax.
Here are some quotes from the dissent, and strikes against the Court:
One, the standard is arbitrary.
After disregarding significant aspects of the Court’s prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come.
Two, the Justices pretend to have knowledge beyond their ken. Do they really know more about the state of medical practice in Texas than does the State of Texas, its legislature and Governor?
Moreover, by second-guessing medical evidence and making its own assessments of ‘quality of care’ issues. . . the majority reappoints this Court as ‘the country’s ex officio medical board with powers to disapprove medical and operative practices and standards throughout the United States.’ . . . And the majority seriously burdens States, which must guess at how much more compelling their interests must be to pass muster and what ‘commonsense inferences’ of an undue burden this Court will identify next.
Three, the High Court is merely invented tests out of nowhere, based on no law, no principles, no precedent.
The illegitimacy of using ‘made-up tests’ to ‘displace longstanding national traditions as the primary determinant of what the Constitution means’ has long been apparent. . . The Constitution does not prescribe tiers of scrutiny. The three basic tiers— ‘rational basis,’ intermediate, and strict scrutiny—’are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.’. . . But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result.
Four, the standards change on a case by case basis, as I mentioned above.
Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review.
Five, real rights are being ignored and trampled while make believe rights are created out of thin air, or, rather emanations of penumbras.
The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment.
Six, special exceptions undermine the rule of law.
Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.
Seven, law itself, the predictable and practical operation of objective legal standards defining what is and is not permissible, has been abolished.
But the entire Nation has lost something essential. The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.’
If his had been assigned to me as a make believe case in law school, or in a moot court, the students arguing the majority position would have received a flunking grade. As a case, it fails on all basic tests of law and logic. First, the plaintiffs had no standing to sue: the alleged abortion right is vested in the mothers, not in a doctor seeking hypothetical persons who may at some future time which to employ him to perform an aborticide. Second, the court must defer to the legislature unless there is an infringement on a Constitutional right, which was not alleged in this case: merely that it would be a burden. Well, no such language seems to prevent gun regulation, advertisement regulation, to the tax ruling that forbids priests and pastors from speaking about politics from the pulpit.Third, the regulation for health and safety reasons of medical practice withing a state is clearly and obviously within the purview of the State’s police power, and the Federal government has no interest therein at all. Fourth, it has no ability to make such a ruling, even if it were within their purview. Fifth, the standard is incomprehensible, vague, and overbroad.
The majority opinion would have been more clear and more honest if the Justices had merely decreed themselves to be above the law, beyond all restriction and restraint, and hereafter able to make or change any law on any matter, including the value of pi, as they see fit, for any reason or no reason.
That, at least, would had been honest. We have now an imperial oligarchy without any pretense or color of constitutional government, just like Augustus, who, although being a monarch and emperor in truth, pretended merely to exercise lawful Roman offices according to their traditional limits.
We would have been spared the empty words, empty alike of meaning as of truth, of which the Justice speaks in his dissent.
Welcome to Rome. Hail, Caesar.