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With Due Respect

Scotus conservatives flex muscles

The six conservatives (also called “textualists” or “originalists”) in the Supreme Court of the United States (Scotus) flexed their super muscles and issued three decisions last June that asserted their absolute supremacy in construing the US Constitution.

THE SCOTUS, BY A UNIFORM VOTE OF 6-3, (1) abolished, in Dobbs v. Jackson (June 24, 2022, penned by Justice Samuel Alito), the women’s “right to abortion;” (2) protected, in Kennedy v. Bremerton (June 27, 2022, penned by Justice Neil Gorsuch), a government employee and any “individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress religious expression”; and (3) strengthened, in New York v. Bruen (June 23, 2022, penned by Justice Clarence Thomas), the American constitutional “right to keep and bear arms in public for self-defense.”

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Historically, Scotus justices have been philosophically divided into two camps: “conservatives” and “liberals.” The conservatives believe in “originalism” which interprets the Constitution according to the original intent of its framers, and in “textualism” which interprets laws according to the words used by the lawmaking body, not to its intent. Textualism’s Latinized battle cry is “Verba legis.”

The liberals or progressives believe in a living Constitution; one that grows with time, solves the vagaries of the present, and anticipates the needs of the future. They rely on the intent more than on the words, phrases, and punctuation marks of the law.

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US presidents who belong to the Republican Party always appoint conservatives who are expected to favor their conservative platform while the Democrats always opt for progressives who mirror the liberal philosophy of their political party.

FOR ABOUT 100 YEARS, THE SCOTUS WAS ALMOST EVENLY DIVIDED between these two groups. During the last two decades, the conservatives had a slim one-vote edge, 5-4, but one or two of them (Justice Anthony Kennedy, now retired, and/or Chief Justice John Roberts) would at times change sides and enable the liberals to win some landmark cases.

Such was the situation, 5-4, in favor of the conservatives, until Justice Ruth Bader Ginsburg, a liberal icon, died on Sept. 18, 2020. Immediately, then US President Donald Trump, a Republican, nominated Amy Coney Barrett, a self-confessed follower and former law clerk of the late Justice Antonin Scalia, who, for several decades, was the recognized leader of the conservatives, thereby giving them a commanding 6-3 majority.

The six textualists are CJ Roberts (nominated in 2005 by George Bush Jr.), Thomas (nominated in 1991 by George Bush Sr.), Alito (nominated in 2006 by Bush Jr.), Gorsuch, Brett Kavanaugh, and Barrett (nominated by Trump in 2017, 2018, and 2020 respectively). The three liberals are Stephen Breyer (nominated in 1994 by Bill Clinton), Sonia Sotomayor, and Elena Kagan (nominated in 2009 and 2010, respectively, by Barack Obama).

Trump held office for four years only. Though much vilified, he was able to name three Scotus justices. In this sense, his legacy is a conservative Scotus that changed, and will continue to change, the constitutional landscape in the US.

ALL THE THREE VERBA LEGIS DECISIONS DESERVE COMMENT, but today, I have space only for Dobbs which abolished the right to abortion.

On Jan. 22, 1973, the then liberal-spirited Scotus ruled, 7-2, in Roe v. Wade (penned by Harry Blackmun, now deceased) that statutes criminalizing abortion are void because they violate a woman’s constitutional right to privacy, a right extracted by judicial fiat from their Constitution’s due process clause (“… nor shall any state deprive any person of life, liberty, or property, without due process of law”).

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Repeated challenges since 1973 narrowed the scope of Roe v. Wade (but did not overturn it) in Planned Parenthood v. Casey (June 29, 1992), Gonzales v. Carhart (April 18, 2007), Whole Woman’s Health v. Hellerstedt (June 27, 2016), and June Medical Services v. Russo (June 29, 2020).

But now, the Scotus completely reversed Roe v. Wade, holding that “[t]he Constitution does not confer a right to abortion.” However, federal or state legislatures may enact laws granting such right. The Scotus roared, “Roe was egregiously wrong … Without any grounding in the constitutional text, history or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters…”

Our Constitution abhors abortion. It has long been a crime in our country. In Imbong v. Ochoa (April 8, 2014), our Supreme Court, voting 14-1, ruled that “life begins at fertilization, not at implantation. When a fertilized ovum is implanted in the uterine wall, its viability is sustained but that instance of implantation is not the point of the beginning of life. It started earlier.” Thus, in my humble opinion, abortion can be committed as early as fertilization because “life begins at fertilization.”

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