WASHINGTON, DC (Catholic Online) – On Friday, April 9, 2010 a significant retirement announcement made the National news, Justice John Paul Stephens is leaving the bench. His departure must be a rallying cry for all those who recognize the true fundamental human rights issue of our age, the right to life from conception to natural death.
Justice Stevens is by all accounts a gentleman and an intellectual. His demeanor has earned him the respect and admiration of many, including his colleagues on the bench who disagreed with many of his judicial opinions. The most notably wrong among those opinions was his support of the majority in the horrendous 1992 decision in Planned Parenthood v Casey. In that case the Court left in place the egregious holding foisted upon the Nation in the opinions of Roe and Doe, essentially denying the preeminent and fundamental human Right to Life to an entire class of persons, our youngest neighbors, children in the womb.
Two sentences from that horrid opinion call to light the fundamental failure of the current Jurisprudence which is undermining true liberty in of our Nation, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Talk about what Pope Benedict rightly identified as the "Dictatorship of Relativism"!
There can be no doubt of how the supporters of killing children in the womb under the newspeak pretext of "choice"- and having it protected as a "right" by the Police Power of the State - consider Justice Stevens' significance. Just note what Nancy Keenan, the President of the National Abortion Rights Action league, now calling itself "NARAL Pro-Choice America" said upon his announcement. She noted "Stevens is among the strongest supporters of the right to choose currently serving on the Supreme Court, and his retirement serves as yet another stark reminder of the important role the court plays in our everyday lives."
Make no mistake. There is no "Abortion Right". The "Right to choose" does not apply to a right to take innocent human life. Some choices are always wrong. Our criminal code is filled with examples. There is no other class of persons over which we recognize an alleged right to kill. Additionally, Abortion is an action.It has no "rights". Human Persons are the recipients of rights, endowed upon them by the God who is their source and not manufactured out of thin air by a Court. The first and fundamental Right, revealed by the Natural Law, is the Right to Life. Without that Right there can be no other Rights because there is no human person to be their recipient.
And, what about those other Fundamental Rights which we purport to recognize, such as Liberty!
The proper understanding of "Liberty" which had for centuries inspired our Nation and made it the envy of the world, has been discarded and replaced by the Court. Justice Stevens also concurred in that Casey opinion with the these inane words "Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman´s right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned." What does that mean? In other words, the architects of a new definition of liberty as a libertine license to take the lives of our first neighbors now insist that legal abortion is a foundation stone which must not be removed lest we foster what they call a "jurisprudence of doubt." Get the switch here? A "conservative" approach to jurisprudence now requries the protection of the status quo under a misunderstanding of "stare decisis".
I am a constitutional lawyer, though my work in Moral Theology and other work has curtailed my functioning much in that capacity these days. For a good part of my 30 year legal career I had the privilege of heading up a public interest law firm called the American Center for Law and Justice, serving as its Executive Director. During those years, I served with one of the great Pro-Life Constitutional Lawyers of our Age, the ACLJ Chief Counsel, Jay Sekulow, who now leads the ACLJ. I was co-counsel with him on several major cases at the U.S. Supreme Court concerning the Right to Life, Family and Religious Freedom. I learned how vitally important that Court truly is in this Nation which has lost its moral compass, rejected the Natural Law and forgotten the Separation of Powers doctrine. The selection of Supreme Court Justices really, truly matters.
The high sounding "chatter" has begun already. President Obama, who has the constitutional power to appoint, also has a Congress all but joined to his hip. That means he has the probable power to confirm. He will now talk incessantly about "judicial temperament" and "restraint". In fact, his first comments concerning Stevens´ tenure of service given on the day of the announcement of his retirement signal the talking points of his administration. Referring to Justice Stevens service he said "During that tenure, he has stood as an impartial guardian of the law. He has worn the judicial robe with honor and humility. He has applied the Constitution and the laws of the land with fidelity and restraint…." He spoke of selecting someone who has "… an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."
Oh, it all sounds so noble doesn´t it? Unless you are a child in the womb.
Most of those calling themselves "conservatives" will also now use their own talking points. They will speak of the need for a "strict constructionist" and a "judicial conservative" who" interprets rather than makes the law…." to replace Justice Stevens. Oh, I know it sounds a little better, but what do the labels "liberal" and "conservative" really mean any longer? Particularly, when it comes to Supreme Court appointments? In an insightful interview the retiring Justice gave in 2007 to Jeffrey Rosen of the New York Times (The Dissenter Jeffrey Rosen, New York Times. Sept 23, 2007) Justice Stevens said ""I don´t think of myself as a liberal at all….I think as part of my general politics, I´m pretty darn conservative."
Rosen noted: " …It may seem surprising that such a passionate leader of the court´s liberal wing bristles when he is called a liberal. But the fact that Stevens sees himself as a conservatively oriented centrist makes perfect sense given what judicial liberalism has become. There was a time, years ago in the Warren Court era, when liberal justices like Stevens´s predecessor William O. Douglas saw themselves as on a mission to recreate American society along boldly egalitarian lines by discovering newly minted constitutional rights. But for better or worse, this ambitious conception of judicial liberalism has been replaced, like much of political liberalism in America, by a more modest, conciliatory and technocratic sensibility. Even the most liberal justices today have little appetite for the old approach.
"Judicial liberalism, in other words, has largely become a conservative project: an effort to preserve the legal status quo in the face of efforts by a younger generation of conservatives to uproot the precedents of the past 40 years. Stevens, who wrote or supported many of those precedents, understandably objects when he feels they are distorted or mischaracterized by justices who were in college when he was appointed to the court. At the same time, merely conserving the achievements of the past is less than what many liberals today ultimately hope for. Can Stevens provide a model for a new vision of legal liberalism in the 21st century?"
The "800 pound Gorilla" in the room in the coming selection and appointment of a replacement for Justice John Paul Stevens is this legal construct called an "Abortion Right." Its' manufacture by the Supreme Court out of what it called the "penumbra" of the 14th Amendment began the current Cultural Revolution in the United States. The "Culture of Death" it unleashed has spread throughout the West. It also set up the ongoing misuse of the 14th Amendment´s "Equal Protection of the Law" as a cover for what amounts to a radical remaking of the culture through judicial opinions. I hear the defenders of the so called "Abortion Right" practicing their toxic song already.For example, I listened to Chris Matthews last night opine about whether or not the newly selected Justice would recognize the "Equal protection" clause as supporting the newest tool of the cultural revolutionaries, the effort to equalize with the force of law the relationship between practicing homosexuals and true marriage.
Make no mistake, Justice John Paul Stevens, with his gentlemanly demeanor, was a proponent of the "Culture of Death". He is also the poster child for what masquerades as "conservatism" in some circles these days, upholding the "status quo", even when it is wrong, under the facade of a misapplication of "stare decisis". For example, calling what can never be a right, Abortion, a right. Actions do not have rights, people do! Abortion is always and everywhere the wrongful taking of an innocent human life. In that same interview Justice Stevens addressed the barbaric practice of infanticide euphemistically called "Partial Birth Abortion". Rosen writes:
"On the issue of abortion, however, Stevens has failed to persuade Kennedy to vote consistently with the liberals. I asked Stevens about the decision last term in which Kennedy, writing for the five more conservative justices, upheld the federal ban on partial-birth abortion. Stevens said that the federal ban was deeply flawed and that Kennedy´s rhetoric about the need to protect women from the emotional trauma of abortions was frustrating. But he noted that the real-world effect of the defeat was minimal because of the widespread availability of alternative abortion procedures. "The statute is a silly statute," he said. "It´s a silly statute." He added, "It´s just a distressing exhibition by Congress, but what we decided isn´t all that important."
"I asked whether Stevens thought the right to abortion recognized in Roe v. Wade would survive in his lifetime. "Well, it´s up to Justice Kennedy," he replied. "I don´t know about the two new justices" — Roberts and Alito — "but I kind of assume it may well be up to him." Abortion rights supporters may take solace in the fact that Stevens indicated that Kennedy seemed to view the regulation of so-called partial-birth abortions as consistent with Planned Parenthood v. Casey, which upheld the central holding of Roe v. Wade. "I don´t think he thinks this" — the recent abortion opinion — "requires him to change his views at all," Stevens said. "We´ll have to wait and see. I suppose there are a lot of people out there praying I get out of the way."
Justice John Paul Stephens is now "getting out of the way". It is a different time in our Nation than what existed in 2007 during that interview. Those who have the "upper hand" in the nomination and confirmation of his replacement defend the indefensible, the taking of innocent human life as a sort of "Super Right." I know this President will not nominate a Pro-Life candidate. I am not naive. I hear the multitude of cynical voices already responding to this article. However, we must raise the loudest cry ever heard! We must insist upon the selection and appointment of a new Justice who recognizes the fundamental human Right to Life. Only that kind of Justice will do what needs to be done, reverse Roe v Wade. The Cries of the Children Must be heard. We must give them our voice! We Need a Pro-Life Justice.