Constitution Watch: First Monday Blues

Being “up” on public issues means, in an important way, knowing what the Supreme Court is doing with (or to) the American Constitution. October 2nd was “First Monday,” the traditional day of opening of the Court term (its 205th). Once again concerns arise: what cases, significant in terms of constitutional freedoms, will the Court be taking up and how is the Court likely to dispose of them? Embedded in the last question is always the question of who really are the nine individuals deciding the cases.

As to the first question, already on the Court’s docket, (and argued October 10th) is the momentous Colorado “gay rights” case. Discussed this year in the March and July- August issues of Crisis, the decision in this case is potentially one which will give homosexual practice a highly protected status in American law and the gay movement new, formidable, political power.

Abortion issues are again knocking at the Court’s door. Filed are three cases involving picketing of abortuaries, one challenging the federal Freedom of Access to Clinics Entrances Act. In each a court has held pro-life picketers not protected by the First Amendment’s free speech clause. Those decisions are remarkable when read against the background of decisions of the Supreme Court protecting picketing in labor disputes and freedom of expression generally. It is to be hoped that the Court will grant review in both cases and come to grips with the contradictions they present. Abortion as a financial enterprise is the subject of three other cases now approaching the High Court. In each, U.S. Courts of Appeal have given so broad an interpretation to the 1994 federal law relating to Medicaid funding of abortion as to invalidate state laws limiting such funding.

Depending on how fast they are moved in the lower courts, other cases of immense importance seem likely to arrive at the Supreme Court before the end of this term. Two of the cases concern state laws about physician-assisted suicide. In March the U.S. Court of Appeals for the Ninth Circuit upheld a Washington prohibitory law, and in August a U.S. District Court held unconstitutional an Oregon authorizing law. These decisions, supported by strong—indeed eloquent—opinions, have thrown a block into the highly propagandized “death with dignity” movement. The block may be temporary, since the U.S. Court of Appeals for the Ninth Circuit has decided to have the decisions reviewed by a bench of eleven judges. Well before the end of the Supreme Court’s term these cases will undoubtedly be before it. It has not escaped the attention of euthanasia supporters that the three judges authoring the pro-life opinions are Catholic (John T. Noonan, Jr., Diarmuid F. O’Scannlain, and Michael Hogan).

In response to a now powerful demand by parents for economic freedom to choose religious and other private schools for their children, bills have been widely introduced for plans whereby states would issue vouchers to parents, to be exchanged for educational services at such schools. Wisconsin adopted such a law this past year, but a court order has now barred its becoming operative. After further state court proceedings, the Wisconsin act will likely reach the Supreme Court this term. On that case may rest all hopes, in our time, for a resolution of the old problem of justice to parents in choice of schools, a problem sharply acerbated today by the evils and failures of the public school establishment.

The prospective docket of the Supreme Court is therefore potentially one of great significance. How will the Court rule in these cases? The records of the members of the present Court do not encourage optimism. Betting on who will vote how is usually hazardous. But on the issues of abortion, assisted suicide, and school choice, there is little risk in predicting that three members of the Court—Rehnquist, Scalia and Thomas—will vote pro-life and pro-school choice. But four—Stevens, Souter, Ginsburg and Breyer—will adamantly advance the opposite position, or what may fairly be called the secularist line. The remaining two—O’Connor and Kennedy—having held (with the above four) that a woman has a fundamental right to kill her unborn child—would not seem likely to set aside implications of that philosophical premise in the matter of assisted suicide. On school choice their votes can scarcely be guessed at. On this, as on some other issues they have appeared not forcefully decisive. Should death or illness create vacancies on the bench during the Clinton presidency, we can expect the favored replacement to be billed, as was Souter, as “moderate,” or “centrist.” That is, on issues of the sacredness of human life and liberty in education—radical and absolutist.

William Bentley Ball

By

William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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