COVID 19 has encouraged a number of alternate ways to cope with home confinement and selection of entertainment. Classic movies are easily and inexpensively available. On the Tuesday evening before the SCOTUS broadcast of oral argument on the Mississippi case (Dobbs v. Jackson) deemed to threaten Roe v. Wade, Inherit the Wind, the 1960 film about the clash of science and religion in Hillsboro, Tennessee (actually Dayton, TN), was the main event.
Most are familiar with the broad outlines of the tale, wherein a local school teacher is charged with violating a state law prohibiting the teaching of material deemed contrary to commonly accepted religious principles. In this case, the descent of mankind from lower species of animals as propounded by Charles Darwin.
History is replete with episodes of conflicts between religion and science. It should be noted that, while the First Amendment to the Constitution prohibits Congress from making any law establishing a religion or prohibiting the free exercise of religion, nothing precludes SCOTUS from doing so by the exercise of its judicial authority.
The movie adopts its title from a 1955 play and a passage in Proverbs 11:29: “Whoever brings ruin on their family will inherit only wind, and the fool will be servant to the wise.” The oral argument before SCOTUS and questioning by Court members carried echoes of the doomsday repercussions dramatized in the film.
Most observers of today’s SCOTUS calculate that the conservatives have a 6-3 majority. At the same time, it is unstated that six of the nine are Catholic, with one, Justice Sotomayor, among the liberal bloc. Catholic religious doctrine unalterably condemns abortion and other artificial birth prevention methods as well as in vitro fertilization. Justice Barrett’s reference to adoption as a solution to abortion reflects the extreme of response. At the same time, Justice Kavanaugh would restore 50 years of abortion jurisprudence to a kind of natural state (a favorite Catholic meme) of allowing “the people” to decide by voiding or minimizing all precedent.
Inheriting wind means no legacy remains for the future. Failing to advance or increase contributions to legacies can be equally fruitless for generations to come. Fools do not possess sufficient discipline to be servant to any, including the wise.
Inheriting wind means no legacy remains for the future. Failing to advance or increase contributions to legacies can be equally fruitless for generations to come. Fools do not possess sufficient discipline to be servant to any, including the wise.
Pundits are convinced that the Court will make a decision affecting the established principles of Roe v. Wade, upsetting a decades-long legacy of liberty for women–and men, for that matter. In theory, SCOTUS has the authority to affirm a state law that is, in fact, religious in its roots. Or, the Court could reject the Mississippi statute and leave the existing body of jurisprudence intact. As a number of the justices pointed out, the only change in 50 years has been that of members of the Court, which is not a basis on which to disturb that 49-year judicial legacy, as the Mississippi legislature boasted.
The Attorney General of Mississippi asserted that “Nowhere else does this court recognize a right to end a human life,” an argument invoking religious and philosophical principle. Justice Sotomayor inquired:
How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. So when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it? It assumes that a fetus is life at — when? You’re not drawing — when do you suggest we begin that life?
The question did not receive a cogent response. Sotomayor’s point is likely to be revisited among the justices during conferences and exchange of legal argument as they seek to arrive at a decision.
For decades, right wing critics have denounced the courts, especially SCOTUS, for “judicial activism,” altering or discarding state and federal law as unelected legislators. Now, however, as Kavanaugh hypothesized, ignoring precedent is an asset of the Court, a historical antecedent that can be applied.
With respect to altering precedent, Justice Kagan remarked that little had changed since Roe was decided to impel a modification of the liberty interests developed since it was propounded. For decades, right wing critics have denounced the courts, especially SCOTUS, for “judicial activism,” altering or discarding state and federal law as unelected legislators. Now, however, as Kavanaugh hypothesized, ignoring precedent is an asset of the Court, a historical antecedent that can be applied.
But, in this instance, the Court need not discard the Mississippi law; it may simply conclude that there exists no compelling basis to alter the holdings of Roe and its progeny. In doing so, the Court would be contributing to the breadth and depth of liberty, particularly that favoring women increasing the inheritance of future generations and demonstrating an abiding wisdom.
There is no guilt or innocence determination required in Dobbs as there was in the case in Tennessee. The plaintiffs are the people of the state of Mississippi, while the defendants are the rights of women across the nation. Only the public school students, teachers, and families were deprived of knowledge in Tennessee, not the entire nation. Every Mississippian who is opposed to abortion may continue to be opposed; however, that First Amendment freedom ought not be universalized at the expense of those in other states under Fourteenth Amendment liberty interests.
As in Tennessee’s Scopes trial, abortion is not inconsistent with or mutually exclusive to a religious precept held by some citizens. Justice Barrett has a solution for them. Justices Alito and Thomas questioned the absence of a reference in the Constitution to abortion or its existence in the period prior to 1866, when the Fourteenth Amendment was adopted. Reliance upon historical antecedents–or the absence thereof–from 155 years ago to revise judicial precedent is patently absurd. The United States is by mere observation not the country it was in 1866. A major aspect of Scopes was the recognition of modern human knowledge and its antithesis in biblical doctrine. In 1866, slaveholders argued that ownership of other beings as chattel was in the natural order of humanity and consistent with religion.
It will likely be next June or July before the Court decides this case, at the height of the midterm election campaigns. Mississippi legislators made a bet that the changes in the character of the justices was the political opportunity to advance the anti-abortion agenda. If the Roe precedent prevails, it may be said that more than wind is the nation’s legacy.
Categories: CIVIL RIGHTS, Issues, RULE OF LAW, SCOTUS
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