Tag Archives: Harry Blackmun

Gay marriage is ‘settled law’ … how about abortion?


Donald J. Trump says the U.S. Supreme Court has settled the issue of gay marriage, ruling that the 14th Amendment to the U.S. Constitution provides “equal protection” under the law to gay couples, thus allowing them to marry legally.

The president-elect made the right call there.

But wait a second!

What about abortion? The High Court also has ruled that women have a constitutional right to make decisions regarding their own bodies, that they are allowed to terminate a pregnancy. They cited the same 14th Amendment’s “right of privacy” provision, as noted in Justice Harry Blackmun’s opinion.

Is it settled law? One would think so.

Trump, though, has said he’s going to find someone to fill the vacancy on the Supreme Court who opposes abortion, who would help overturn the landmark Roe v. Wade decision of 1973.

Isn’t the Roe v. Wade decision “settled law” as well, just as much as the gay marriage decision of just a couple of years ago?

I should note, I suppose, that Trump once was adamantly pro-choice on the abortion issue. Now he is just as adamantly pro-life on the matter.

Trump now plans to apply the abortion litmus test to whomever he selects to the court post vacated by the death earlier this year of longtime conservative icon Justice Antonin Scalia.

Presidents normally say they don’t set up such tests for potential Supreme Court nominees … but of course they do. I’ll give Trump credit at least for all but admitting out loud he has established one critical benchmark for whomever he chooses to fill the court vacancy.

The credit, though, must be tempered by the “settled law” notion that the president-elect applies to one key social issue of our time while refusing to apply it to another.

Kennedy channels Blackmun and makes history

It’s always risky to put too fine a point on some historical events, but today’s ruling by the U.S. Supreme Court legalizing gay marriage in all 50 states tells me that the court has issued a ruling that is going to change the nation’s landscape … forever.

We can give credit — although some will assess blame — on one justice. That would be Anthony Kennedy, a normally conservative justice who sided with the liberals on the court and wrote the 5-4 majority opinion legalizing gay marriage.

Game, set and match? Not by a long shot.

Kennedy’s role, though, does have an interesting parallel with another justice from another time — with whom he served for five years on the same Supreme Court.

Harry Blackmun was selected to the court in 1971 by a conservative president, Richard Nixon; Kennedy joined the court in 1988 when another conservative president, Ronald Reagan, nominated him.

Blackmun eventually would veer far from where President Nixon thought he’d travel as he served on the highest court in the land. Blackmun became one of the court’s more liberal members.

In January 1973, he authored a landmark ruling that made abortion legal in the United States. Roe v. Wade was a case out of Texas in which the court overturned a Texas law that made getting an abortion a felony offense. Blackmun’s opinion stated that women essentially were entitled to control their own reproductive capacity. The 7-2 ruling set the stage for a debate that hasn’t let up over the course of the past 42 years, but it was a huge decision.

The man on the hot seat now is Kennedy, who remains a conservative jurist. But on this issue, gay marriage, he has decided — along with the court’s liberal wing — that the 14th Amendment to the Constitution, with its equal protection clause, trumps states’ reluctance to allow gay couples to marry.

I doubt strongly we’re going to see Justice Kennedy become a flaming liberal in the wake of this ruling. He just happens to be right — and courageous — in making this decision.

Just as Roe v. Wade changed the landscape in early 1973, today’s ruling on gay marriage sets the stage for another gigantic sea change across the nation.

I wish I was a fly on Justice Kennedy’s wall when he talked this over with his court colleagues and his staff as he pondered how he would write this Earth-shattering opinion. Something tells me he heard the late Justice Blackmun’s voice.


Judicial independence bites Obama

Barack Obama has just gotten a taste of what many of his presidential predecessors have had to swallow as it regards federal judicial appointments.

Their court appointments didn’t vote nearly the way their benefactor — the president — wanted them to vote.

That, I submit, speaks quite eloquently to the need to keep the federal judiciary independent.


In two 9-0 rulings in recent days, the court struck down a Massachusetts law that regulated anti-abortion protesters and then it reeled in presidential appointment powers relating to recess appointments made when the Senate is not in session.

That means both of President Obama’s high court picks — Justices Elena Kagan and Sonia Sotomayor — voted against the wishes of the man who nominated them to their dream job in the first place.

We hear yammering — mostly from the right wing of the political spectrum — that “unelected judges” wield too much power. This carping comes usually when the court rules against a cause or principle near and dear to conservatives’ hearts.

Indeed, the court has comprised many Republican appointees who’ve gone against the wishes of their presidential benefactors: Dwight Eisenhower picked Earl Warren to be chief justice and all Warren did was launch the Supreme Court on a whole range of landmark liberal court rulings, starting with the 1954 school desegregation ruling known as Brown v. the Board of Education.

Harry Blackmum (picked by Richard Nixon) wrote the Roe v. Wade abortion decision; John Paul Stevens (Gerald Ford) became a staunch liberal court member; Byron White (John Kennedy) voted “no” on Roe v. Wade; John Roberts (George W. Bush) voted with the majority to uphold the Affordable Care Act.

Now two of the court’s liberal justices — Kagan and Sotomayor — have joined their fellow liberals and conservatives on the court to stick it in President Obama’s eye on a couple of key issues.

So, let’s stop the griping about the federal court system. The founders set up an independent branch of government for a reason, which was to prevent its politicization when trying to interpret the U.S. Constitution.