Solomon v. Pilate

By Dennis M. Howard

Will Chief Justice John Roberts go down in history looking more like Solomon, who made a tough, but wise decision, or like Pilate who washed his hands of responsibility for the case before him?

Solomon had to decide a dispute between two prostitutes who claimed to be a baby's mother. His solution: Slice the baby in half and give half to each. Essentially, he threw the decision back in their laps, presumably hoping that the real mother would reveal herself.

His gamble paid off. The real mother was willing to give up her baby rather than see it killed. The other woman was just as happy to see the baby sliced in half. Solomon got the message and gave the baby to his mother. Word quickly spread of the wisdom of his decision, earning him a reputation that survives to this day.

Unfortunately, John Roberts failed to discern the consequences of the arguments before him and their long term impact on the people's right to life, liberty and the pursuit of happiness. He seemed to care more for what the media and the liberal establishment might think of him.

That may be why he decided to wash his hands of the whole affair — much like Pilate, who caved to the wishes of the mob while protesting, "Don't blame me for a bad decision."

Roberts decision echoes a similar frame of mind. He wrote: "Members of this court are vested with the authority to interpret the law. We possess neither the expertise nor the prerogative to make policy judgments. . . It is not our job to protect the people from the consequences of their political choices"

But what kind of court is it that washes its hands of the consequences of its own decisions? Nothing comes before the Supreme Court unless it concerns a controversy over which people are divided. If such issues could be handily settled, we wouldn't need the Court.

Roger B. Taney hedged his bets in the Dred Scott decision by declaring blacks to be 3/5ths of a person for purposes of representation on the theory that 3/5ths is better than nothing. The American people paid for that decision with the bloodiest war in U.S. history.

Harry Blackmun did it again in Roe v. Wade by admitting his incompetence to make a decision as to when life begins, but then making it anyway. He also blithely committed the greatest violation of States rights in history by overriding state laws against abortion that had been in force for 100 years.

The Supreme Court has been washing its hands of that decision ever since.

Nevertheless, the consequences of Roe v. Wade are undeniable: To date we've rung up a toll of 55 million aborted babies. That's 30% of the entire generation under 40 — with horrific consequences for the nation morally, spiritually, socially, politically and economically.

That's 84.5 times more than all the battle deaths from all our wars. In New York City, there are more babies aborted every year than deaths from all other causes. In that great American city, 60% of all black pregnancies end in abortion. Blacks have already paid a far bigger price for Roe v. Wade than the whole country ever paid for Dred Scott.

Now it may upset Justice Roberts that some decisions are "controversial." But the reason the Supreme Court has jurisdiction in the first place is that its constitutional role is to resolve controversies that the people's representatives can't reasonably settle. If there were no such controversies, there would be no Supreme Court.

Unfortunately, the Court is just as prone to bad decisions as the politicians.

The controversial choice in Dred Scott was between dissolution of the Union and the bloodiest war in U.S. history. We certainly needed a Solomon to thread through that one.


The controversial choice in Roe v. Wade was between a vague "right to privacy" found in some penumbra of the Constitution and the certain death of 55 million future unborn Americans. Let's speak the truth: A Court that doesn't care about the consequences of its decisions is more dangerous than a drunk behind the wheel.


Of course, the country is as divided over abortion today as it once was over slavery, but the alternatives to resolution based on justice and the Constitution aren't pretty.

Tragically, the Court is divided. You can't get more divided than 4-1-4, which is the way the decision went on Obamacare. That sounds very much like a majority of one. The liberals and the conservatives stuck to their positions. Roberts failed to resolve the issue cleanly. As he said: "It is not our job to protect the people from the consequences of their political choices."


That's deeply troubling. If the Supreme Court has no responsibility for the consequences of its decisions, America is like a rudderless 747 flying through a thunderstorm.


The country also lost because the seeds were sown for endless future litigation. Roberts threw a bone to the conservatives by ruling the act unconstitutional under the commerce clause. Then he then turned around and approved it under the taxing powers of the Constitution. That may have pleased the Democrats, but now they have the burden of defending it on the most unpopular basis known to man: higher taxes.

Roberts also upped the ante for future taxpayers by removing any sensible limits on the types of behavior that can be taxed. If you can be taxed for not buying health insurance today, what's to stop you from being taxed for not buying broccoli tomorrow?

That could spawn endless future controversies. In the population control controversy, one side could argue for taxing births, for example. Or, worse yet, for refusing an abortion. On the other hand, conservatives could argue for taxing abortions on the grounds of their obvious economic impact on the country and on other taxpayers.

The estimated cost in lost GDP from 55 million abortions has already reached $45 trillion. A tax of $50,000 to $100,000 on every abortion would seem modest by comparison to the real costs of abortion. But what a storm it would kick up!

Roberts also twisted the knife by letting the States off the hook with regard to federal Medicaid mandates. He gave the states a waiver to ditch the expansion of Medicaid. Quite a few may take it, dramatically increasing federal share of costs. Bankruptcy here we come!

Even if the Republicans win in November, the task of repealing and replacing this awful law has gotten tougher and messier. They will still have to repeal and revise a 2700-page law that Nancy Pelosi warned us about, "You have to pass it if you want to know what's in it."

That means they will actually have to read it to repeal it. All bets are off that anyone will.

© Dennis M. Howard