June 26, 2022
by Stephen Stofka
In the past two decades the Roberts’ court has overturned several long standing court precedents and laws. In Heller and Citizens United, the court has favored the greatest degree of individual freedom in their reading of the 1st and 2nd Amendment. In this week’s 5-4 decision to overturn Roe, the court has chosen the least amount of individual freedom in their interpretation of the 14th Amendment. In his concurring opinion, Justice Clarence Thomas stated a desire to overturn other court precedents based on the 14th Amendment. In 2013, the court’s Shelby decision overthrew portion of the Voting Rights Act based on the 14th Amendment.
Before overturning the “separate but equal” doctrine that had been in place for five decades, newly appointed Chief Justice Earl Warren delayed the Brown v. Board of Education decision by six months to try and convince two of the justices to change their vote and make the decision unanimous. Warren demonstrated a respect for the principle of stare decisis that the Roberts court does not have. This week’s decision overturned five decades of legal precedent on a 5-4 vote. At Scotusblog, Amy Howe (2022) notes the disagreement among the justices as to what their decision means going forward.
The six conservative members of the Supreme Court are members of the Federalist Society. Each working day of the session they gather in a candle lit chamber in the basement of the Supreme Court Building and kneel down before the Grand Jurist of the Federalist Society.
“Do you believe in the sanctity of the text?” they are asked and each affirms their belief.
“Do you swear to only write opinions and never write law?” the Grand Jurist asks and they each swear an oath.
Around each neck, an acolyte drapes a necklace adorned with eyes of newt, the claw of an eagle, the eye of a falcon. Each jurist will deftly weave through the jungle of legal texts like a newt. Each jurist will grasp the text’s relevant truth like an eagle. Each jurist will have the wide vision but narrow focus of a falcon.
Each jurist puts their thumbs and forefingers together to form the letter “O.” “Do you swear to observe the commandments of Originalism?” the Grand Jurist asks and each affirms obedience. Each justice stands and is wrapped in the black robe of objective jurisprudence based on the meaning of the original text as the lawmakers understood it. They bow to the Grand Jurist and are escorted to their individual chambers.
Their law clerks bring each justice the finger bones of dead lawmakers and jurists – the 18th century jurist Blackstone, the forefingers of Jefferson, Adams, the signers of the Constitution and the Amendments. Into a bowl go the bony digits and the justice gives the bowl three shakes, and no more. Two law clerks tie the dark bandana of Originalism around the justice’s eyes. In a ritual called “throwing the bones,” the justice withdraws a bone from the bowl, and lays it at a random spot on the unfurled scroll of sacred text. Twice more the ritual is performed, then the bowl is put aside and the bandana untied.
Jefferson’s finger may point to the “privileges and immunities” clause in the 14th Amendment and a clerk solemnly records the historical precedent. The thumb of John Bingham, the author of the first section of the 14th Amendment, may point to the “life, liberty, or property” phrase in that same Amendment. The pinky digit of Thurgood Marshall might point to the “due process” phrase in the 5th Amendment. These will be the foundations of the justice’s opinion. The bones are returned to their vessels, the scrolls rolled up and secured. The bones and their placement are different for each justice.
The clerks begin a scan of the databases containing all the sacred texts, searching for the occurrence of each phrase and an indication of how the lawmaker or previous justice understood those phrases. In the course of several months, each justice assembles these perspectives into an opinion which they hand first to the Grand Jurist of the Federalist Society. The Grand Jurist selects that opinion that most faithfully follows the principles of Originalism, secures that opinion with a wax seal, then imprints the wax seal with his ring. An acolyte then delivers the opinion to the Chief Justice, John Roberts and the opinion is made public.
The Grand Jurist was 22 and in law school when Roe v. Wade was decided fifty years ago. He never liked that decision. This Friday, the Grand Jurist smiled as he closed the heavy door to the underground chamber below the Supreme Court.
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Photo by Danika Perkinson on Unsplash
Howe, A. (2022, June 24). Supreme Court overturns constitutional right to abortion. SCOTUSblog. Retrieved June 24, 2022, from https://www.scotusblog.com/2022/06/supreme-court-overturns-constitutional-right-to-abortion/
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