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The politicization of the court arguably happened back in 1973. Plus, guns do not fire themselves.
By Gary Abernathy
The court’s politicization arguably began back in 1973
During the oral arguments over the Mississippi abortion law that could lead to the demise of Roe v. Wade, Justice Sonia Sotomayor teed up a comment that she knew would be catnip for her ideological allies across much of the mainstream media.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible," she said, ostensibly directing her comments to Mississippi Solicitor General Scott Stewart, but really aiming them at the national media to echo through the land.
As Marc Thiessen writes in the Washington Post:
Remarkably, in Wednesday’s oral arguments, none of the liberal justices made any substantive arguments to defend Roe or Casey as rightly decided. Instead, they argued politics and process. First, they said overturning Roe and Casey would — in Justice Sonia Sotomayor’s words — create a political “stench” that the court might not “survive.” But the job of a Supreme Court justice is to decide cases based solely on the law and the Constitution, not politics. Doing otherwise is precisely what damages its credibility.
One could easily argue that the 1973 ruling making Roe the law of the land was the moment that the high court became politicized. Whatever opinion anyone holds about abortion, the leap of logic needed to find a constitutional protection for aborting a pregnancy has long been noted as one of the greatest exercises of creative license in judicial history.
In a famous dissent to the majority in Roe, Justice Byron White (who was joined by Justice William Rehnquist in disagreeing with the 7-2 majority on Roe) wrote, “The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Regardless of whether I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States."
Indeed, returning the question to “the people and legislatures of the States” is exactly what a ruling in favor of Mississippi would do.
The questioning on Wednesday offered a classic example of the different philosophies of liberals and conservatives when it comes to the role of the courts. The liberals focused their questions on the impact of their decision, while conservatives focused on the constitutionality of the law.
Claims of impending catastrophe have been common since conservatives (if you count John Roberts) gained a 6-3 majority on the court. The same critics thought it was fine when liberals dominated the court for decades.
But catastrophe hasn’t happened, and it won’t happen even if Roe v. Wade and the subsequent Casey v. Planned Parenthood are overturned. The court is not on the verge of declaring abortion illegal, as some hysterical overreactions would indicate. What will happen is that the question of abortion rights will be returned to the states, where different states will abide by different laws based on the judgment of state legislatures, which are comprised of people elected by the residents of their respective states.
Much has been written about this conservative court, especially with three justices appointed by former president Donald Trump, as though that fact alone makes them somehow illegitimate. Particularly disrespected is Justice Neil Gorsuch, because he was appointed to a seat that those on the left claimed “belonged” to former president Barack Obama to fill. Obama had nominated Merrick Garland. Garland never received a hearing, because Republicans controlled the Senate.
Suffering similar disparagements is Justice Amy Coney Barrett because she was nominated late in Trump’s final year, and Republicans had said that Garland was not considered because an election was pending and the American people should weigh in on the presidency before a nominee was voted on. Then, they completely contradicted themselves by acting on Barrett in late 2020.
I always wished that back in 2016 GOP Senate leader Mitch McConnell and other Republicans had simply said, “We’re not going to consider Merrick Garland because we control the Senate and we don’t want to consider him.” Just be honest, because Democrats would have done the same.
If Democrats were in control of the Senate and a vacancy occurred near the end of a Republican president’s term and the president nominated a conservative to fill it, Democrats wouldn’t have acted on it either. Conversely, Democrats would have eagerly confirmed a nominee under the same circumstances if the nominee was a liberal nominated by a president of their own party. It would have happened exactly the same way, because that’s politics as played by both sides.
Even with conservatives in the majority, the Supreme Court has surprised those who predicted certain outcomes. We’ll see what happens with the Mississippi case and Roe v. Wade. As I wrote in my Washington Post column a couple of months ago, Roe may be overturned not because the court has gotten more conservative, but because the law has finally caught up to the science. But we’ll see.
Of course, this week’s hearing led the political discussion back to the notion of expanding the court, possibly adding more members to “balance” it — or “pack” it, in reality. Those worried about politicization should understand that a legislative act from one party to add more liberals would be the most obvious example of politicizing the court.
Note to Alec Baldwin: Guns do not fire themselves
Actor Alec Baldwin’s “interview” — and yes, I put that word in quotes — with ABC’s George Stephanopoulos that aired Thursday is probably the biggest example of a self-serving public relations stunt with the aid of a journalist since — well, since every time Donald Trump calls into “Fox & Friends.”
To recap, Baldwin feels really bad about shooting and killing someone on a movie set, but he knows it wasn’t his fault, and he’s confident he won’t face charges. That about wraps it up, under the less-than-challenging questioning by Stephanopoulos.
Politically, I’m no Alec Baldwin fan. But that doesn’t mean I think he’s guilty, or that I even want him to be guilty of anything. The facts are the facts, however they fall.
Baldwin claims he didn’t pull the trigger on the old-style gun. He merely cocked and released the hammer. He makes that claim as though it takes him off the hook.
“I let go of the hammer of the gun, and the gun goes off,” claimed Baldwin, adding, “I didn’t pull the trigger. I would never point a gun at anyone and pull the trigger. Never.”
In fact, letting go of the hammer of an old-style revolver, or replica of an old-style revolver, can fire the gun without pulling the trigger. So even if he just let go of the hammer, and the gun fired, he still fired the gun. Guns do not fire themselves, despite the way in which some headlines about this case are being written.
Here’s an explanation from an expert not specifically referring to the Baldwin case:
On older guns, like the Colt Single Action Army revolver, the firing pin is on the hammer. When the hammer is at rest, it can press against the primer of the cartridge (or percussion cap of muzzle loading arms). A hard blow to the hammer can cause the round to fire. There is no “safety” mechanism to prevent this, which is why many users in the 1870’s and later left one chamber empty so the hammer would rest on the empty chamber for safety. When the hammer is lifted it begins to compress the mainspring which will push the hammer forward to fire the cartridge. With these older guns, you must maintain control of the hammer until it reaches its full-cock position. If you don’t, once enough spring tension exists, releasing the hammer will fire the cartridge.
Would have been a nice issue for Stephanopoulos to raise.
Mark Weaver, a longtime prosecutor and former Ohio deputy attorney general, wrote a column recently describing why Baldwin should be held responsible for the shooting under New Mexico law. Check it out here.
Baldwin said, “There’s only one question to be resolved and that is, where did the live round come from?” Nice to be able to conduct your own investigation and determine your own questions. Investigators may find there are a few more questions.
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