By Phil Worden
I believed Dr. Ford’s testimony in the Senate Judiciary Committee hearing before Justice Kavanaugh’s confirmation to the Supreme Court. And I understand why the sexual misconduct issue dwarfed all other issues. But some of the issues raised in the original proceedings deserve revisiting because they deal with how our Supreme Court works.
Kavanaugh promised to act merely as a neutral umpire who only calls “balls and strikes.” He also assured Senator Collins that he views Roe v Wade (1973) as modified by Planned Parenthood v Casey (1992) as “settled law.” His promise and assurance rested on a dishonest portrayal of what the U.S. Supreme Court does.
Unlike the Maine Supreme Court, which hears practically all appeals, the U.S. Supreme Court only hears a select few of the cases appealed to it. The most commonly used criterium to get an appeal heard by the court occurs when the Courts of Appeal (the courts immediately below it) reach conflicting conclusions. The U.S. Supreme Court then hears an appeal so it can settle the disputed question of law.
Courts approach questions of law by first looking at the text of the law. If the text is clear the inquiry ends because all judges follow a clear law. When the text is not clear, judges look at the context of the law to resolve the ambiguity. If that doesn’t work, they review the legislative history in the hope that it will clarify what the law intended. To appreciate this disciplined process one has to rejoice in the ambiguity of the English language.
But what can a judge do when the text, context, and history of a law does not compel the resolution of an ambiguity? The very fact that learned Courts of Appeal can disagree about the meaning of a particular law demonstrates that the task is not as simple as merely calling “balls and strikes.” When the U.S. Supreme Court splits 5-4 the fact that such learned justices disagree attests to the extreme difficulty of the question before them.
A 5-4 split in the Court does not reflect a simple political partisanship as often presented in the press. But it does show that when all else fails to resolve extremely difficult questions, a judge must fall back on his or her judicial philosophy on public policy.
Given that only very difficult questions are presented to the Supreme Court, individual justices must develop a consistent philosophy about how to resolve impossible issues. Justices Scalia and Ginsberg often voted together but they split on the unresolvable issues because each had/has a different philosophy to fall back upon.
In considering a nominee to the U.S. Supreme Court, the most important question is what judicial philosophy the judge will fall back upon when presented with questions where the text, context, and history of the law does not compel an answer either way. Pretending to only call “balls and strikes” trivializes what a U.S. Supreme Court Justice must actually do.
Some of our most important constitutional doctrines cannot be found in the text of the Constitution. For example, unlike the Maine Constitution, which has an explicit provision on separation of powers in its text, the U.S. Constitution does not mention separation of powers. But jurists of all judicial philosophies agree that the doctrine of separation of powers can be found in the structure of the Constitution because the three branches of government are listed separately in the text.
A woman’s right to choose similarly cannot be found in the text of the Constitution. But the text of the Constitution does protect us in our houses and persons, guarantees our right to think what we want, and to worship or not worship as we please. Roe finds a woman’s right to choose in the shadow or “penumbra” cast by these textural rights that, when combined, protect our privacy.
Bans against interracial marriage, home schooling, the use of birth control, and first-trimester abortion have all been struck down as unconstitutional because they invade a substantive zone of privacy that government has no business entering.
But finding a right to privacy in these textural provisions of the Constitution is not yet as accepted as finding the separation of powers in the structure of the Constitution. Several Supreme Court Justices have already indicated their willingness to overrule Roe and Casey.
Kavanaugh did not contradict himself when he wrote that Roe is “unsettled” in the eyes of many jurists while assuring Senator Collins that he considers Roe and Casey both to be “settled law.”
As an Appeals Court Judge he was bound by Roe and Casey because our Courts of Appeal do not have the authority to overrule Supreme Court precedents. But now that he is a Supreme Court Justice he will be bound by Roe & Casey only to the extent that he chooses to be so bound (stare
Senator Collins said she voted for Justice Kavanaugh because Dr. Ford’s testimony was uncorroborated. Apparently, she does not know that the Maine State Prison holds many prisoners who demonstrate that the uncorroborated testimony of even a young girl, if believed, is sufficient to find guilt beyond a reasonable doubt.
Senator Collins did not believe Dr. Ford and it appears she fell both for Kavanaugh’s promise to act like a neutral umpire who only calls “balls and strikes” and his assurance that he might voluntarily uphold Roe and Casey.
Phil Worden is a retired attorney who lives in Bar Harbor. He can be reached at firstname.lastname@example.org.