Michael Gaynor
From the Warren Court to Roberts Court to Thomas Court
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By Michael Gaynor
July 5, 2022

The only way Dobbs can be undone in the foreseeable future is if President Biden has the opportunity to replace some of the five Justices who voted to overrule Roe and Casey.

SCOTUS is becoming the Thomas Court, even though Justice Clarence Thomas is not the Chief Justice, because time has proven the senior Justice on the Court right on the key issues of this time, especially Dobbs v. Jackson Women's Health Organization, 597 U.S. ____ (2002), in which the Court held that the Constitution did not create a tight to abortion and overruled both Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 832 (1973) in an opinion that Justice Thomas assigned to Justice Alito to write, and The New York State Rifle & Pistol Association, Inc. v. Bruen, in which Justice Thomas wrote for the Court that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home and because the State of New York issued public-carry licenses only when an applicant demonstrated a special need for self-defense, the State’s licensing regime violated the Constitution.” Chief Justice Roberts joined Justice Thomas's opinion along with Justices Alito, Gorsuch, Kavanaugh and Barrett.

Let's give Clarence Thomas, the senior United States Supreme Court justice, his due – it's becoming the Thomas Court, thanks to President Ronald Reagan's appointment of Justice Thomas, President George W. Bush's appointment of Justice Samuel Alito and President Donald Trump's appointments of Neil Gorsuch, Brett Kavanuagh and Amy Comey Barrett.

The Supreme Court of the United States is often referred to by the last name of its Chief Justice, but the Chief Justice too has only one vote and since Chief Justice John Roberts refused to overturn the Supreme Court's abortion case, Justice Thomas selected the author of the Dobbs opinion acknowledging that there is no right to abortion under the United States Constitution and returning the abortion issue to the States where the Constitution left it.

I remember the Warren Court, named after Earl Warren a Republican from California.

The current Chief Justice, John Roberts, was not among the five justices who boldly overruled Roe v. Wade. Justice Clarence Thomas as the senior Justice in the majority selected the Justice to write the majority opinion and graciously chose Justice Samuel Alito, who proved very worthy of selection, Chief Justice Roberts chose to separate himself from the majority by refusing to overrule Roe v. Wade and only upholding the constitutionality of the Mississippi abortion law at issue in the case and continuing to call SCOTUS the Roberts Court elevates form over substance.

In Planned Parenthood v. Casey, 505 U.S. 833 (1992), a 5 to 4 decision in which the Supreme Court decided that a right to have an abortion was established by the "essential holding" of Roe v. Wade and its "key judgment" was that state-imposed restrictions on abortion must not create an "undue burden."

Chief Justice Warren is best remembered for crafting his unanimous opinion in Brown v. Board of Education.

In sharp contrast, Chief Justice Roberts cemented his place in history as an incrementalist, not an originalist.

For those who don't remember Chief Justice Warren, who boldly led the Supreme Court, whether rightly or wrongly, Wikipedia states:

    Earl Warren (March 19, 1891 – July 9, 1974) was an American lawyer, politician, and jurist who served as the 14th Chief Justice of the United States from 1953 to 1969. The Warren Court presided over a major shift in American constitutional jurisprudence, which has been recognized by many as a 'Constitutional Revolution' in the liberal direction, with Warren writing the majority opinions in landmark cases such as Brown v. Board of Education (1954), Reynolds v. Sims (1964), Miranda v. Arizona (1966) and Loving v. Virginia (1967). Warren also led the Warren Commission, a presidential commission that investigated the 1963 assassination of President John F. Kennedy. Warren also served as Governor of California from 1943 to 1953, and is the last chief justice to have served in an elected office before nomination to the Supreme Court. Warren is generally considered to be one of the mo As Wikipedia noted elsewhere, Brown v. Board of Education was NOT a majority opinion. It was unanimous and Chief Justice Warren deserves great credit for the unanimity of his opinion.

    Wikipedia:

    Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), was a landmark decision of the U.S. Supreme Court in which the court ruled that U.S. State laws establishing racial segregation in public in public schools are unconstitutional, even if the segregated schools are otherwise equal in quality. The court's decision partially overruled its 1896 decision Plessy v. Ferguson, declaring that the 'separate but equal' notion was unconstitutional for American public schools and educational facilities. It paved the way for integration and was a major victory of the civil rights movement, and a model for many future impact cases.

The struggle to correct the Supreme Court's creation of a constitutional right to abortion took nearly fifty years (but not as long as overruling Plessy v. Ferguson) and the abortion issue is back with the states where the Constitution put it.

Amending the Constitution to create an abortion right is not politically feasible.

The great worry now is whether the Constitution will be subverted by criminal means, such as assassinating Supreme Court Justices or intimidating them into resigning. Since a draft of the Dobbs decision overturning Roe and Casey was leaked, the Biden Administration has tolerated illegal demonstrations at the homes of Supreme Court Justices notwithstanding a federal statute prohibiting them.

Fortunately, the United States Secret Service has been protecting the Justices, but it is outrageous that Secret Service agents have to check places where Justices want to go (even the residences of relatives) and at least one Justice felt the need to wear a bullet proof vest.

The only way Dobbs can be undone in the foreseeable future is if President Biden has the opportunity to replace some of the five Justices who voted to overrule Roe and Casey.

It is a frightening thought.

According to the American Historical Review, James McHenry, a Maryland delegate to the Constitutional Convention, wrote in his notes: “A lady asked Dr. Franklin Well Doctor what have we got a republic or a monarchy. A republic replied the Doctor if you can keep it.”

May God protect the United States of America and its Constitution, the rule of law and the Justices of the United States Supreme Court.

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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