Of course the Supreme Court can make a wrong decision. But since it is the entity charged with deciding what is right and what is wrong, those wrong decisions can only be corrected either by Constitutional Amendment, impeachment, latter overturning of precedent by another court, executive refusal to abide by the ruling which withstands congressional impeachment, military coup, or armed insurrection. But legally, every decision that Supreme Court makes is by definition legitimate, since the Supreme Court is the body that determines what is legitimate and what is not. People may of course disagree with those decisions, but in our democracy, those decisions have to stand and be enforced until otherwise legally overturned. It’s a lot of power, to be sure, but it’s part of the contract we entered into to generate stability in our government.

As conrad pointed out, the framers of the constitution recognized that not all rights could be enumerated in one document. It is entirely the purview of the SCOTUS to decide whether a newly presented right, as was the right to privacy, is one contemplated by the 9th amendment.

In reading the Wikipedia entry on the 9th amendment, it seems clear that the 9th amendment was intended by the framers to act as a restraint on the exercise of governmental power. That should be perfectly acceptable to liberals and social conservatives alike.

As with so many things, it’s outcomes we dislike, not the process itself.

Finally, speaking to both John’s and Ross’ take on limiting 2nd trimester abortions; paraphrasing Ross, either a fetus is viable, or it is not. If it is not viable in the 2nd trimester, then there is no difference between abortion in the 1st vs abortion in the 2nd.

Jake

You said:

“If Marbury is constitutional in principle, then so is Roe.”

My question is, are you saying that anything the Supreme Court decides is Constitutional as long as it can get away with it (as opposed to being corrupt and unconstitutional, but happening anyway because the other branches are corrupt). Obviously as a practical matter the Supreme Court has a large amount of power unless its members are impeached (or unless the executive and legislative branches falt-out ignore its decisions). My question was more along the lines of whether you believe any decision it makes is automatically legitimate or whether you could consider its decisions to be abuse of its powers, even when it gets away with it?

I guess what I am saying is that I am not asking about the practical aspects of what the Court can do, but whether or not you could see any Court decisions as an outrageous abuse of power and illegitimate, as opposed to just not being what you wanted.

No. Supreme Court justices can be impeached just like the President. But it does have “infinite power” in regard to judicial decisions until its members are impeached, theoretically at least. That is why it is probably the most self-restraining of the three branches of government – because it has the least amount of legal restraint upon it.

As for the court finding an implied fetal right in the Constitution, this would seem very hard to do, in that the original Constitution and the 14th amendment defines citizens/persons as those “born or naturalized in the United States”. Since fetuses are by definition not born, they can’t have rights. It’s one thing to argue over what rights we have, it’s another to redefine who is even a person, and what rights they would have. There’s no question, I think, that the founders did not intend fetuses to have rights, and the latter amendments to the constitution that granted rights to slaves, for example, did not extend that provision to the unborn. So, in short, this is not going to happen without either a constitutional amendment, or five justices who simply don’t care what the constitution actually says or intended.

I don’t think even Scalia, Thomas, Roberts and Alito would go that far. That doesn’t mean they couldn’t overturn Roe, but not on that basis. And frankly, I don’t think they would overturn Roe, just chip away at it a bit. I think they would prefer a constitutional amendment also. One of the reasons I don’t think they’d go that far is that there has been so little democratic efforts at an amendment – it hasn’t gone anywhere, which gives the court little reason to think that there’s much of a groundswell of support for overturning Roe. If actually got somewhere, but was falling short by a few states, the Court could reason that overturning Roe and sending it back to the states wouldn’t hurt anyone much, since those states that rejected it could still legalize abortion in their states – unless the court suddenly and radically decided that fetuses were persons with rights. Which is another reason the court wouldnt’ go that route – it would leave no room for any compromise.

It seems to me, conradg, that the question is, does the Court have infinite power?

Or does the Constitution simply mean whatever the Court wants it to mean at a given point?

If one accepts the authority of The Supremes to hand down these kind of edicts, I see no reason at all why they couldn’t also turn around and, in reversing _Roe_, find a protected fetal life interest under the 14th Amendment. Are you, then, prepared to stand by you logic and accept that absent a Constitutional Amendment they are the final arbiter of this question? Or would you like to be heard on the matter? It looks to me like if Scalia, Roberts, Thomas and Alito could get one more vote that could happen…..and those guys are all quite young by Court standards.

There are volumes of very learned debate out there on this issue….I don’t want to regurgitate more of it than I already have, and I daresay no one else could bear to listen to it. But as a Parthian Shot I will note that _Roe_ is often pointed out to be a very inartful decision even by critics on the left. Among the most prominent of these critics is one Ruth Bader Ginsburg. Her very good law review article is readily accessible through the _Roe v. Wade_ link provided by Wikipedia, so it isn’t hard to find. Her central critique is that _Roe_ -guess what? – short-circuited the democratic process and needlessly inflamed anti-abortion forces.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This is only controversial because there’s a controversy about whether the fetus has rights also. The strange thing is, the very people who argue that the right to privacy is not protected in the Constitution, that Roe invented new rights, want the Court to declare that fetuses are legal persons with individual rights of their own. The whole anti-abortion crusade is based on this notion of a fetal “right to life”. So they want the court to not only invent a new right, but a new class of human organisms that have rights of their own. Clearly this would take a constitutional amendment, but they want to short-cut that by judicial fiat. Strange logic at work here.

Its for this same reason why talk of gay marriage being debated “democratically” is a non-starter for most; it is viewed, rightly or wrongly, as a right, one upon which the majority cannot invalidate. Again, people who disagree with the process rather than the substance of such decisions obviously misunderstand the whole concept of rights and how the judiciary is supposed to protect them. You can argue there is no right to agay marriage, which is fair, but you can’t argue that the court does not have a right to enforce it if it does exist. As indicated by Marbury v. Madison, it very clearly does.

Now, you can say that the DC gun rights verdict was better argued or was founded on sounder legal thinking. But that is an argument about content, not process. My fundamental point is merely this: that Ross, and many of Roe’s antagonists, want to make the issue about process rather than about content. He objects that Roe v. Wade is somehow removed from the democratic process, and implies that it is in a way that is untrue of other Supreme Court decisions. That isn’t true; Roe v. Wade intrudes on democracy only and exactly to the same degree that any other Supreme Court case does. Just as with the DC gun ban. So while I invite Ross to argue against the content of Roe, I am tired of those who oppose abortion speaking as though Roe is a uniquely disenfranchising case. It only tramples democracy to the degree that all rulings on constitutionality by the Supreme Court do.

To those who are insisting that Roe v Wade has upset the democratic process in the United States, I insist back that they apply that thinking to any and every Supreme Court case that has overruled state or local statute.

And again, it’s strange to hear federalism invoked in regards to Roe. The whole point of Roe is that the government does not have an absolute power to regulate individual personal lives, and what is most personal and private in those lives. It’s not so much an assertion of an individual right to an abortion as placing a limit on the government’s power to insert itself into the personal lives of citizens. It’s a case of the federal government limiting itself and states, not of the federal government creating new rights. It’s logic is one of recognizing the inborn, inherent rights human beings to live without limitless governmental intrusion. I would think that most right-wing libertarian types would agree with that logic – except, of course, when they don’t like where it leads. And that’s why the judiciary can do these things – they follow the legal logic or where our constitutional principle lead. We may not always like the outcome, but there is a remedy. In this case, I would oppose the remedy, both in the specifics of abortion, but also on principle, that I dont’ think we need to increase the ability of government to intrude on people’s private, personal lives, but to limit it even further. It’s surprising how that principle can be overriden in so many people’s politics simply because they don’t like certain specific outcomes.