The Supreme Court Declares Itself Infallible

As you know, the Court refused to reject the basic premise in Roe which declared that women have a right to abortions. The swing vote of “conservative” Justices (O’Connor, Kennedy, and Souter) avoided a direct reexamination of Roe by deciding that whatever has already been decided in the past cannot be reversed by later Courts. They hinted that while they themselves may have ruled differently on Roe in 1973, it was now too late to reopen this basic issue. During the last twenty years, men and women had become accustomed to the “liberty” of abortion. A reversal of Roe‘s long-standing legacy would result in chaos and a loss of respect for the Court.

The Court appears to be saying that no matter how illogical or unjust rulings by previous Courts have been, later Courts are bound by the limits of these previous decisions.

This decision implies a new doctrine of infallibility regarding Court opinions. Just as papal infallibility means that a later pope or church council may not reverse the teachings on faith or morals pronounced by previous popes or church councils, now the Court (or at least three of its current members) feels it too is bound by the teachings of its own infallible forbears. The difference between the Supreme Court and the Magisterium, of course, is that at least the Catholic Church claims its teaching pronouncements are protected and guided by the Holy Spirit.

The Supreme Court has never made any such claim to divine inspiration. Indeed, judging by many of its rulings in the last half century, the Court seems to have completely rejected the notion of a Divine. Thus, relying on neither God nor reason, the present majority of Justices have enshrined human weakness – the arrogance, the mistakes, and the social engineering of past Justices – as the guiding law of the land. They insist that the nation must adhere to the past “infallible” teachings of the Court, even if these teachings were not well grounded in history, law, medicine, or justice, simply because “continuing the course” is the best avenue toward social peace, harmony, and the common good.

This means that, in the short term, the author of Roe, Justice Blackmun has been protected from the humiliation of being overruled by his fellow Justices. There will be no rebuking of his judicial activism. In the long term, this decision, if left unreversed, will lead to even more acts of legislating from the bench. Future Justices will feel freer to impose whatever “progressive” laws they want on the nation with renewed confidence that their rulings will remain binding on future Courts.

The fear of reversal is often the only thing which stems judicial activism in the lower Courts. If the Supreme Court refuses to reexamine, judge, and reverse the activism of its own members, sitting, retired, or dead, then it is enshrining judicial activism. In order to force social change on the nation, an activist Court can distort the Constitution into any meaning it chooses. To succeed in making its changes permanent, the activists only need to maintain control of the Court long enough to make their decisions a “longstanding” part of our “culture.” May God protect us from the pride and madness of our cultural elite.

Originally published in The Post-Abortion Review 1(1) Winter 1993. Copyright 1993 Elliot Institute

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