Why I Would Support a Pro-Choice Justice (In a Heartbeat)


Now that I have your attention…

I am completely pro-life (in the real, “historic” sense of term, not the muddied, newfangled, “Christian Left” sense of it, which can be used to pretty much nullify what has always been meant when we say it): I believe that human life, created in and bearing the image of a holy God, should not be taken in the womb (in 99.998% of circumstances). I believe that we are reaping the fruit of the “sexual revolution” in that many people’s sexual behavior, untethered from Biblical morality, has produced a host of societal issues, not the least of which is the prevalence of abortion. I support the overturning of Roe v. Wade, even knowing that that alone will not solve the problem nor, for that matter, can any legislative or judicial fix; problems of the heart can only be solved via a relationship with God in Christ. Further, I wish every person believed the same way.

At any rate, saying all of that, I would support a pro-choice Justice. If that shocks you, please read on, because we need to understand the issues related to the filling of a Supreme Court vacancy such as has now been presented to the President and the Senate with the impending retirement of Anthony Kennedy.

When asked in a 2016 presidential debate what she was looking for in a Supreme Court Justice, Hillary Clinton said, “I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose.” Here’s the shorthand: “I don’t care about what the Constitution says; I want my political position upheld.” Barack Obama spoke of wanting to choose justices who exuded “compassion”. He failed, of course, to explain why “compassion” should have anything to do with the subject (which it shouldn’t, though in general, I am definitely in favor of compassion!). The issue, when it comes to selecting a Supreme Court Justice (well, any judges, for that matter) should be simple, and has exactly nothing to do with political positions: will you interpret and apply the law as it stands written in light of the Constitution of the United States as it stands written and amended, and will you do it with impartiality?

The position of such current “activist” justices can be more or less summed up in the words of the last justice Charles Evans Hughes, who infamously said, “…the Constitution is what the judges say it is.” Currently, there are several justices who have proven time and again that this is their approach to the law. Justice Kennedy has proven to often rule this way. The fact is that we don’t need a “balanced” Court when it comes to judicial philosophy; this is a simple matter of the right way to approach the law as against a wrong way (exemplified in Justices Ginsburg and Breyer, among others).

The question, then, is not whether a judge personally is “pro-life” or “pro-choice”, to use a hotbed issue; the question is whether or not a justice will seek to determine cases based upon attempting to understand the Constitution as written and amended, or whether other prejudices will cause the justice to invent “rights” in keeping with his/her own imagination. Before Roe is evil in its effects, it is bad law based upon bad judicial reasoning. Harry Blackmun waved a magic wand and found a “right to privacy” that no one in nearly two centuries had been able to find in the Constitution (well, because it isn’t there), and then wrote his opinion in Roe v. Wade, striking down abortion restrictions in all fifty states, based upon this figment of his fertile imagination. Other decisions have, throughout the years, been similarly rendered by activist justices (and one aside: enough with the nonsense, voiced recently by Susan Collins, that overturning Roe would constitute “judicial activism”; no, Ms. Collins, one could overturn decisions on end and not be an “activist” if the basis of the overturning involved an attempt to get back to the clear meaning of the Constitution). And while liberals have tended to applaud judicial activism, often because their ends have been accomplished by judicial shortcutting instead of them having to do the difficult, yet Constitutional, work of changing the law and amending the Constitution, their rights–and all of ours–are in peril. When judicial activists have their way, no one’s rights are safe, because such “rights” are grounded only in the minds of those justices, and not in the bedrock of the Constitution, and while the winds of such thought may blow in a liberal direction currently, such winds might change in the future.

Much better then for justices–all nine, preferably–to ground their reasoning in the Constitution. And if this is the case, it matters little what a judge’s personal convictions might be. And thus we’d be far better off with nine justices who might be personally pro-choice, but who see their roles as interpreting the Constitution as written and amended, rather than nine pro-life justices who see the Constitution as a living–or, better put, mutating–document.

Leave a Comment