Chief Justice William Rehnquist died on September
3, 2005.
It falls to President Bush to nominate a
replacement.
Elevating Justice Scalia or Justice Thomas and then
nominating Judge Emilio Garza, a distinguished federal appellate court judge
and a Marine, as the first Hispanic to serve on the United States
Supreme Court would be just fine.
Even Long Island's Newsday grudgingly
acknowledged the Chief's profound influence on American
law in reporting his death:
"Due to an increasingly conservative atmosphere
and his own brilliance and perseverance, he had gone from lone ranger
to leader of a judicial counterrevolution likely equal or greater
in consequence to all that was done by [liberal Justices] Warren and
Brennan in the 1950's and 60's."
Unlike his secular extremist
colleagues of the United States Supreme Court, the Chief appreciated
that God, not the United States Supreme Court, is supreme, and the
United States is "one nation, under God."
And he faithfully
fulfilled his oath to support the Constitution instead of yielding
to the temptation to manipulate it in the guise of judicial interpretation
to suit his personal preference.
Since his appointment as an
Associate Justice of the United States Supreme Court in 1971,
the Chief worked assiduously to overcome secular extremism's judicial
coup in Everson v. Board of Education, 330 U.S. 1 (1947).
There,
the United States Supreme Court declared: "The First Amendment has
erected a wall between church and state. That wall must be kept high
and impregnable. We could not approve the slightest breach."
And
ruled not only rightly that "[t]he 'establishment of religion'
clause of the First Amendment means at least" [that] [n]either
a state nor the Federal Government can set up a church," but also,
ridiculously, that "[n]either can pass laws which aid...all religions."
InWallace v. Jaffree, 472 U.S. 38 (1985), then Justice Rehnquist respectfully
dissented to the Supreme Court's deplorable decision striking down
an Alabama statute that authorized a minute of silence in public schools
"for meditation or voluntary prayer."
Justice Rehnquist wrote:
"The
Framers intended the Establishment Clause to prohibit the designation
of any church as a 'national' one. The Clause was also designed to
stop the Federal Government from asserting a preference for one religious
denomination or sect over others. Given the 'incorporation' of the
Establishment Clause as against the States via the Fourteenth Amendment
in Everson, States are prohibited as well from establishing a religion
or discriminating between sects. As its history abundantly shows,
however, nothing in the Establishment Clause requires government to
be strictly neutral between religion and irreligion, nor does that
Clause prohibit Congress or the States from pursuing legitimate secular
ends through nondiscriminatory sectarian means."
The next year,
President Reagan proudly and properly elevated the Chief to the Chief
Justiceship.
Unsurprisingly, the Chief was one of just
two justices who dissented in the landmark Roe v. Wade ruling that
overturned laws prohibiting abortion nationwide, issued in 1973.
Because
it represented judicial activism at its worst.
Then Justice Rehnquist
wrote:
"The Court's opinion brings to the decision of this troubling
question both extensive historical fact and a wealth of legal scholarship.
While the opinion thus commands my respect, I find myself nonetheless
in fundamental disagreement with those parts of it that invalidate
the Texas statute in question, and therefore dissent.
"The Court's
opinion decides that a State may impose virtually no restriction on
the performance of abortions during the first trimester of pregnancy.
Our previous decisions indicate that a necessary predicate for such
an opinion is a plaintiff who was in her first trimester of pregnancy
at some time during the pendency of her lawsuit. While a party may
vindicate his own constitutional rights, he may not seek vindication
for the rights of others. Moose Lodge v. Irvis, 407 U.S. 163 (1972);
Sierra Club v. Morton, 405 U.S. 727 (1972). The Court's statement
of facts in this case makes clear, however, that the record in no
way indicates the presence of such a plaintiff. We know only that
plaintiff Roe at the time of filing her complaint was a pregnant woman;
for aught that appears in this record, she may have been in her last
trimester of pregnancy as of the date the complaint was filed.
"Nothing
in the Court's opinion indicates that Texas might not constitutionally
apply its proscription of abortion as written to a woman in that stage
of pregnancy. Nonetheless, the Court uses her complaint against the
Texas statute as a fulcrum for deciding that States may impose virtually
no restrictions on medical abortions performed during the first trimester
of pregnancy. In deciding such a hypothetical lawsuit, the Court departs
from the longstanding admonition that it should never 'formulate a
rule of constitutional law broader than is required by the precise
facts to which it is to be applied.' Liverpool, New York & Philadelphia
S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885).
See also Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis, J.,
concurring).
"II
"Even if there were a plaintiff in this case capable
of litigating the issue which the Court decides, I would reach a conclusion
opposite to that reached by the Court. I have difficulty in concluding,
as the Court does, that the right of 'privacy' is involved in this
case. Texas, by the statute here challenged, bars the performance
of a medical abortion by a licensed physician on a plaintiff such
as Roe. A transaction resulting in an operation such as this is not
'private' in the ordinary usage of that word. Nor is the 'privacy'
that the Court finds here even a distant relative of the freedom from
searches and seizures protected by the Fourth Amendment to the Constitution,
which the Court has referred to as embodying a right to privacy. Katz
v. United States, 389 U.S. 347 (1967).
" * * *
"To reach its result,
the Court necessarily has had to find within the scope of the Fourteenth
Amendment a right that was apparently completely unknown to the drafters
of the Amendment. As early as 1821, the first state law dealing directly
with abortion was enacted by the Connecticut Legislature. Conn. Stat.,
Tit. 20, §§ 14, 16. By the time of the adoption of the Fourteenth
Amendment in 1868, there were at least 36 laws enacted by state or
territorial legislatures limiting abortion. While many States
have amended or updated their laws, 21 of the laws on the books in
1868 remain in effect today. Indeed, the Texas statute struck
down today was, as the majority notes, first enacted in 1857 and 'has
remained substantially unchanged to the present time.' Ante, at 119.
"There apparently was no question concerning the validity of this
provision or of any of the other state statutes when the Fourteenth
Amendment was adopted. The only conclusion possible from this history
is that the drafters did not intend to have the Fourteenth Amendment
withdraw from the States the power to legislate with respect to this
matter.
"III
"Even if one were to agree that the case that the Court
decides were here, and that the enunciation of the substantive constitutional
law in the Court's opinion were proper, the actual disposition of
the case by the Court is still difficult to justify. The Texas statute
is struck down in toto, even though the Court apparently concedes
that at later periods of pregnancy Texas might impose these selfsame
statutory limitations on abortion. My understanding of past practice
is that a statute found to be invalid as applied to a particular plaintiff,
but not unconstitutional as a whole, is not simply "struck down" but
is, instead, declared unconstitutional as applied to the fact situation
before the Court. Yick Wo v. Hopkins, 118 U.S. 356 (1886); Street
v. New York, 394 U.S. 576 (1969).
"For all of the foregoing reasons,
I respectfully dissent."
Nearly 45 million "legal" abortions took
place in the United States since.
In contrast, several thousand
people died and near a million and a half people were displaced as
a result of Hurricane Katrina.
The Chief worked at the Supreme
Court as long as his health allowed.
Sadly, he will never serve
as a colleague with Judge John Roberts, one of his many former law
clerks.
But the Chief led the charge to set matters right.
And
it falls to others to complete his noble work.
Made more difficult
by President Clinton, who appointed two secular extremists to America's
highest court, including an ACLU attorney (Justice Ginsberg) and a
Harvard professor friend of Ted Kennedy (Justice Breyer).
Michael J. Gaynor, born in New
York in 1949, has been practicing law in New York for more than thirty
years. He has written articles and letters on subjects of current
interest that have been published in The National Law Journal, Legal
Times, The New York Law Journal, The New York Times, The Wall Street
Journal, The New York Post, The Washington Times and others. He can
be reached at GaynorMike@aol.com.
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