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Will the Leaked Roe v Wade Draft Unravel the Myth of Judicial Honesty?

THE VIEW FROM HERE - “Lying, thieving, hypocritical prigs” pretty much sums up the United States judiciary. 

Last time, we wrote how the passion for Group Rights was a harbinger of doom.  May 9, 2022, CityWatch, If King Priam Had Heeded Cassandra, He Would Have Saved Troy.  Group Rights, be it Christian Fundamentalism or Woker tribalism, thrives on the lust for power.  Had Lord Acton lived in the 1770's, perhaps his 1887 saying, “Power tends to corrupt; absolute power corrupts absolutely,” would have made it into the Declaration, the Constitution’s preamble or the Federalist Papers.  There is no gainsaying that the Founding Fathers obsessed over the destructiveness of accumulated power.  The Articles of Confederation had so erred on the side of limiting power, that it had created a non-functioning central government.  Hence, the1787 Constitutional Convention was convened in Philadelphia to devise a new system which was strong enough to function to secure our inalienable rights.  A government must have enough power to constrain other centers of power without itself becoming the source of corruption.  Freedom of the press expected newspapers to expose governmental wrongdoing, but more often than not, the media has become the handmaiden of corruption, e.g., The Los Angeles Times. 

The Founding Fathers attempted to devise a government which balanced power against power within itself so that no one faction could gain enough power to destroy the nation. Benjamin Franklin, who perhaps best understood the perilous nature of the Constitutional Convention’s undertaking, certainly had his doubts about their success.  When asked what form government the Convention had fashioned, Franklin replied, “A republic, if you can keep it.” 

The complicated system of checks and balances depended upon men of intelligence and integrity to act at crucial points.  Hence, we arrive at the great weakness of our Constitutional frame work – our dearth of intelligence and integrity.  Some times one cannot determine whether a politico’s behavior is due to limited intelligence or lack of probity, e.g., Sen. Susan Collins. Is she really so mentally dense not to parse that Brett Kavanaugh actually said that he would overturn Roe v Wade? 

The Myth of Judicial Integrity 

The Founding Fathers realized that a Republic based on a constitution needed an independent judiciary to determine if laws were constitutional.  Otherwise, a government would run amok trampling on people’s rights. While all societies must have some mechanism to determine whether someone has broken the law, many systems place the judicial function under the control of the tribal chief, the monarch, or the dictator.  Perhaps, the earliest break with this authoritarian practice came when Nathan (ca 880-790 B.C.E.) pointed at King David and declared, “Thou art the man.”  2 Samuel 12:7 

Judicial Decisions Need Power to Be Effective 

The Pope could issue decrees as long as people believed he was God’s emissary on earth and he had the power of excommunication.  People attribute to Joseph Stalin at the 1943 Teheran Conference the rhetorical question, “The Pope, how many legions does he have?”  Religious mythology supported the Pope’s power, which disintegrated to the extent the myth disappeared.  Our secular myth, which supports the nation’s voluntary adherence to Supreme Court decisions, is that the justices are qualified by intelligence and integrity.  When we see that the justices are intellectual buffoons and craven power mongers devoid of regard for the Constitution, it loses our respect.   

It Would Be Disingenuous to Pretend That Other Huge Lapses in Integrity Have Not Preceded the Leaking of the Alito’s Draft   

Brown v. Board of Education, 347 U.S. 483 (1954) was a horrendous betrayal of our trust in the myth of judicial integrity.  January, 9, 2022, CityWatch, The Time To Repudiate Brown v Board of Education is Overdue. The Warren Court withheld from Blacks the inalienable and constitutional right of liberty, thereby undercutting Blacks as true Americans.  Instead, it used equality of outcome where Black achievement was measured against White achievement to end segregation.  This pernicious denial of the individual inalienable and constitutional right of Liberty provided the legal basis for Group Rights including Identity Politics and Wokerism.  The Warren Court lacked the integrity to adopt the dissent in Plessy v Ferguson (1896) 163 U.S. 537 that segregation was a denial of Liberty and hence per se constitutional.  For Justice Harlan, segregation violated the individual liberty rights of Whites and Blacks and anyone else whom it affected. 

Another egregious betrayal of integrity came in December 2019, when Nancy Pelosi disregarded the advice of the law professors not to stop the gathering of evidence of Trump’s wrongdoing as the House had failed to place enough evidence into the record to convict Trump in the Senate. (More practically, once there was adequate evidence and public opinion tide had sufficiently gone against Trump, the GOP and Dem leadership could Nixonize Trump into resignation.)  The Constitutional Convention had expressly devised the House Impeachment and Senate Trial format to remove someone like Donald Trump. They (wrongly) believed that the Congressmen would have enough love for the nation and integrity to faithfully carry out the constitutional provision. Nancy Pelosi, however, had a different agenda, one of her personal power, which needed Trump to run for re-election . Trump’s insane behavior was her best fundraising tool.   December 5, 2019, CityWatch, Harvard Law Professor Noah Feldman’s Roadmap to Nancy Pelosi’s Subversion of Impeachment. 

Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010), was based on the outlandish idea that a corporation had actual personhood, and hence, it had First Amendment rights in addition to the individual rights of its owners (shareholders).  This position was legal claptrap.  The correct legal concept is that corporation is a “fictitious person.” This legal fiction merely allowed a group of people to have an enduring business independent of its owners.  The response to Shylock’s question, “If you prick us do we not bleed?” (Merchant of Venice, Act 3 Scene 1) would have been a resounding “No, you do not bleed” if it had been asked by Shylock Conglomerate, Inc.

Thus, none should assume that the lying, thieving, hypocritical prigs on the Supreme Court are recent phenomena. Such behavior is passim in all branches of our government, but it is particularly reprehensible in the judiciary since we have granted them so much status and secrecy (and worse of all, immunity.)  The difference with this leak is that it revealed the High Court’s skullduggery before it had put its final approval on such an intellectually wretched decision.  It is one thing for Eric Garcetti and Rick Caruso to be non-stop prevaricators, but we naively expected better of judges.

(Richard Lee Abrams has been an attorney, a Realtor and community relations consultant as well as a CityWatch contributor.  You may email him at [email protected].)