Dred Scott was Settled Law Too.

Judge Amy Coney Barrett, Donald Trump’s nominee to fill the vacant seat on the Supreme Court, is certain to be questioned at length (and ultimately opposed no matter her answers) over the issue of abortion. Just as slavery was America’s defining issue of the 1800’s, abortion will be our defining issue of the 20th and 21st centuries. Just as slavery was America’s original national sin that cost us a bloody civil war to extirpate, legalized abortion on demand is the terrible sin that may cost us even more dearly. If it is a terrible crime to put a man in chains, what can we say of the slaughter of more than sixty million unborn, innocent children?

“Roe v. Wade is settled law,” the Democrats like to say, and they will demand that any nominee for the Supreme Court assure them that it will remain settled law.

Precedent and the law. It is interesting how important the principle of stare decisis becomes once the Democrats have achieved their desired outcome. Prayer banned in public schools, gay marriage, abortion: the courts are the least democratic of our branches of government, but it is there that the Democrats have accomplished their most dramatic and corrosive transformations of American society. Transformations that they could not pass through the legislative process. Transformations that they do not intend to be reversed.

Roe v. Wade is bad law. It was literally made up, an exercise in creative thinking from the mind of liberal justices with no basis in the Constitution. But now it is settled law, the Democrats say, and may not be touched. So if the Supreme Court rules on something, that mean it is absolute, immutable, forever set in stone and no legislative or judicial process can ever change it.

Really? The people have no recourse whatsoever if SCOTUS speaks? That is absurd on its face. We are no more bound in slavery to a tyranny of nine unelected judges than we are to any branch of our government. What recourse do the people have through the democratic process?

First, legislative. Everyone seems to have forgotten, but we have three co-equal branches of government, and any two of them may overrule the third. Congress and the president have the power to remove an issue from the purview of the Supreme Court, and if that effort reaches an impasse (a runaway court tries to declare such an action by the other two branches”unconstitutional”) Congress may impeach if necessary. But a resort to such drastic measures would be one of those “constitutional crises” we’re always hearing about. The usual (supposedly) non-confrontational method of overturning a decision of the Supreme Court is as follows:

  • The people elect a president that will appoint justices who see things differently.
  • The people elect a senate that will confirm the justices that their president nominates.
  • The people wait for vacancies on the court to provide their president the chance to act.

This process can take decades, and when the lives of sixty million or so unborn children are the price of the patience it demands, it is especially unfortunate that the people, the president and the congress were unable to muster the courage or conviction necessary to restrain and overturn the corrupt decision immediately. But the fact that it took decades for the will of the people to move does not somehow render the original flawed decision immutable. If the people cannot in any way reverse a bad decision of the court through the legal processes of government, then we truly do live under a tyranny, and the only remedy is the one prescribed by the Declaration of Independence:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…

Is this what the Democrats are suggesting? That the only way the American people can overcome stare decisis is to overthrow their government and start over?

No, Roe v. Wade is “settled law” just like the Dred Scott decision was settled law. It is settled until it is reversed.

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