These are the most brutally polarizing problems in American life: abortion and weapons. And two major Supreme Court decisions in two days did nothing but resolve them, sparking a debate about whether conservative judges are honest and in line with history and the constitution – or quoting them to justify political preferences.
For some critics, these decisions represent a clear, profoundly harmful contradiction. How can a court justify restricting states’ ability to regulate firearms while extending the right of states to regulate abortion?
“The hypocrisy is flowing, but the damage is endless,” House Speaker Nancy Pelosi said on Friday after the court announced his abortion decision. For supporters, the court’s conservatives remained true to the principles of nation-building and the eradication of past mistakes.
The court corrected a historic mistake when it repealed the abortion law, which had existed for almost 50 years, said former vice president Mike Pence on Friday. He said on Twitter that the decision had brought Americans back to power “to govern themselves at the state level in a way that is consistent with their values and aspirations.”
Opponents of Roe v. Wade, a controversial 1973 verdict in favor of abortion, said the Supreme Court had previously done what some now accuse most judges of adapting and distorting legal arguments to fit political positions.
The members of today’s conservative majority of the court, who dealt with the decisions of this week, were relatively consistent, following the words of the country’s founders and historical precedents, did not go further, they told supporters. In both decisions, the majority argued that if the law is enshrined in the US Constitution, the bar of any government regulation of that law is much higher. However, if the law is not clear, state and federal governments have more freedom to impose regulations.
For those studying the court, however, the reality is complicated.
Some agreed that, despite all the controversy over judges, most judges followed at least one consistent legal theory when deciding on abortion and weapons.
“I understand how hypocritical this looks, but from a conservative majority of court’s point of view, this is a consistent approach in both cases,” said Richard Albert, a law professor at the University of Texas. in Austin. “I’m not really saying it’s good, but from their point of view it’s absolutely consistent and consistent.”
However, the consistency cannot be obscured by the fact that there has been a seismic shift in court since President Donald Trump appointed three conservatives. And that is likely to contribute to a muddy public perception of an institution that prefers to see politics, court observers said.
Both decisions “come from the same court whose legitimacy falls,” said Laurence Tribe, a leading constitutional law expert and professor emeritus at Harvard Law School.
Most court decisions on gun rights and a day later abortion decisions were based on a philosophy of constitutional interpretation called “originalism.” To find out what rights were granted by the constitution, the originals examined what the texts meant when they were written.
The views of the originals are often filled with detailed historical research, such as these two decisions. Much of Judge Clarence Thomas’s opinion on gun rights is devoted to history and what was said about the founders’ intentions when they created the Second Amendment, and whether legislators made the 14th Amendment an appropriate process in the 1960s. Thomas inspected a long list of historical figures, including King Henry VIII of England, whom the judge said the arrival of weapons threatened the skills of his long-bowed subjects.
The abortion ruling by Judge Samuel Alito also examines the past and concludes that there is nothing in the historical record to support the constitutional right to abortion.
“Not only was there no support for such a constitutional right until Roe, but abortion has long been a crime in every state,” Alito wrote.
The two decisions this week are legally more consistent than critics have suggested, said Jonathan Entin, a professor emeritus of law at Case Western Reserve University in Cleveland. “We can discuss the meaning of the second amendment, but the second amendment speaks clearly about the right to own and carry arms, while the right to access abortion is not clear in the constitution,” he said. “If that’s what you’re talking about, maybe these decisions may not be so exciting after all.”
Not all observers agree.
“I think there’s a double standard here,” said Barry McDonald, a law professor at Pepperdine University, who examined the judges’ arguments that both decisions were based on a strict reading of the law and in history. This logic shakes, he says, given the conclusion of many legal historians that the right to possess a weapon in the Bill of Rights is in fact much more limited than in most courts.
However, most ordinary Americans do not know such a complex legal theory. However, many measure court action based on their perception of the judges’ motives and the personal consequences of the decision, experts said.
Many are likely to see the decision as a direct result of Trump’s appointment and judges’ determination to carry out his agenda, making the court “more a political institution than the law,” McDonald said.
Tribe said most of the court accepted yesterday’s imagination and his claims in support of the law alone were untrue. Most judges can say that they are legally consistent. But combined, he says, the gun and abortion decisions create a court whipping effect that claims to protect the rights of individuals and then effectively limit the control that many Americans have over them. “I think the decisions go in very different directions,” said Tribe, “but they have one thing in common, that they are judged by a new, courageous majority who knows no limits to autonomy and is fully prepared. reject it first in the name of a version of originality that will never unite. “