Halsey Frank: Thoughts on recent SCOTUS decisions


Contrary to the New York Times, I don’t believe that the Supreme Court “spurred” our nation’s current divisiveness. That divisiveness preceded the Court’s recent decisions. But those decisions exacerbate the divisiveness, and it worries me.

I happened to be in D.C. the day after someone leaked a draft of the Supreme Court’s Dobbs’ decision. It was a beautiful spring day. When I got off the Metro at Union Station, I could hear chants coming from the Supreme Court, so I walked over. Other people were heading in the same direction, including a woman walking next to me with a sign that said, among other things, “stop the tyranny of the minority.”

There were several hundred people gathered around the front steps of the courthouse. A woman was leading the crowd in call and response: “Human rights are under attack. What do we do? We fight back. What do we want? Abortion rights. When do we want them? Now. What do we do if we don’t get them? Shut (but it may have been “burn”) it down.”

Whatever the leaker’s intent, the Court didn’t back down. On June 24, it issued a largely unchanged opinion holding that Roe and Casey were wrongly decided, and the Constitution does not confer a right to abortion. The First, Fifth, Ninth, and Fourteenth Amendments don’t imply such a right, and our history and tradition don’t support it as a component of ordered liberty or substantive due process. The fact that people have relied on Roe’s precedent did not justify adhering to such flawed decisions, the Court said.

President Biden called the Dobbs’ decision sad, extreme, tragic, erroneous, and dangerous. The Squad called the Court illegitimate and urged protesters to take to the streets and fight. Pro-abortion activists protested at justices’ homes and threatened justices’ lives. Governor Mills called the decision an assault on women’s rights.

On June 30, the Court issued its opinion in West Virginia v EPA. It held that the Environmental Protection Agency doesn’t have the authority to force the energy industry to convert existing coal fired power plants to natural gas fired plants and renewables. That’s the kind of major decision that must be made by Congress, not an administrative agency. Congress has so far conspicuously declined to enact such a change itself, and it didn’t give the EPA the authority to do so in the Clean Air Act. In fact, Congress considered and rejected several times one of the mechanisms that the EPA used to force the change, cap-and-trade.

President Biden called the decision devastating and backwards. Maine Democrats called it flawed, shortsighted, and offensive. Oxfam lamented Congress’ dismal record on climate, and underscored the need for federal agencies to have the power to fight environmental racism.

I believe that a woman should be able to get an abortion. Not because it is an affirmative good. Because it is a necessary evil. Necessary because we are terribly imperfect. In too many cases, we fail to use contraception or contraception fails us, and a woman winds up having an abortion. In doing so, we are ending relatively dependent and undeveloped life for the sake of the quality of other more independent and developed ones. That’s not a principle that should be enshrined in our Constitution. It’s hypocritical to accuse the Supreme Court of tyranny for overruling a right it created.

While our Constitution contemplates the existence of other rights besides those it enumerates, it provides a process for their proposal and ratification. That process has been employed successfully 17 times. It doesn’t involve the Court, and the Court enters risky territory when it creates constitutional rights.

That said, I wouldn’t have overruled Roe, even though I believe that it was wrongly decided by the wrong branch at the wrong level of government, because it’s going to do more harm than good, and because I don’t have any monopoly on truth, justice, or wisdom.

I want clean air, clean water, and land free from contamination. But I don’t think that an administrative agency should be able to reshape a major sector of our economy in an effort to clean the air without getting clear authority to do so from the legislature. If the national legislature is incapable of compromising to form majorities, then the issue should probably be addressed at the state level to the extent possible.

Our government separates power into layers and branches that specialize in exercising the power best suited to their nature. The resulting balance protects against any component becoming too strong. We make law through our elected representatives. The executive branch implements that law. The judiciary resolves disputes using the law, including disputes about what the law means and whether the government is acting according to it. The federal government is one of limited, enumerated powers. The rest are reserved to the states and the people.

That system is what makes us Americans.


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