In the future I hope to post, and comment on, what I consider to be the more significant and noteworthy progressions of the last four decades or so.
In this particular post, I thought I’d bring out of archive the transcript of the oral argument heard by the Supreme Court on Wednesday, November 8, 2006.
This was, of course, the partial-birth abortion case (Gonzales v. Carhart) – narrowly decided 5 to 4, on April 18th of this year upholding Congress’ ban of the brutal act.
Take a listen to this exchange between U.S. Solicitor General Paul Clement, arguing for the constitutionality of the ban, and Justice Breyer who opposes it:
JUSTICE BREYER: Just from my going through this record, I compare it with Stenhart, with what's in Congress. We have two cases here…My question would be, if this -- do we owe more deference to a congressional finding or to Congress than we owe to a State legislature? What is -- I mean, I take it a State legislature is democratically elected, and don't we owe similar deference to both?
A bit of background. Breyer is here referring to Stenberg v. Carhart, the Supreme Court case decided in 2000 which struck down a Nebraska ban on partial birth abortions. “Stenhart” (as Breyer calls it) was, like this case, also decided 5-4. Only, it ruled that partial birth abortions are, in fact, protected by the United States Constitution, and that the Nebraska law was therefore unconstitutional. The recent shift in the Court’s opinion (by that one, solitary vote), can be justly attributed to President Bush and his appointment of Sam Alito, who took Sandra Day O’Connor’s seat on the bench upon her retirement in 2005. Back to the transcript.
GENERAL CLEMENT: Well, Justice Breyer, I think you certainly owe deference to both. I think –
JUSTICE BREYER: Well, if we owe deference to both, and I would have thought that we did, then I think in the Nebraska case, despite the deference that was owed, the Court came to the conclusion that the statute of Nebraska was unconstitutional because it lacked an exception for the health of the mother...
Did you catch the slight of hand?
First, Breyer asks if the Court owes deference to a democratically elected congress (state or federal). Congress makes the laws, the Courts interpret them; that is the fundamental nature of our system of government. So Solicitor General Clement answers in the affirmative: Yes, the Court ought to defer to Congress.
But then Breyer states, “Well, if we owe deference to [Congress], and I would have thought that we did [in “Stenhart”], then...in the Nebraska case, despite the deference that was owed, the Court came to the conclusion that the statute…was unconstitutional.”
Do you see it now?
He agrees deference is owed to Congress by the Court, and he suggests deference was provided in Stenberg v. Carhart. But then he admits it was not, saying, “despite the deference that was owed, the Court [concluded] that the statute...was unconstitutional.”
In other words:
1) Deference was provided in Stenhart
2) Deference was not provided in Stenhart
Breyer’s statement is a contradiction. It’s too bad General Clement did not catch it at the time. For the fact of the matter is Breyer (and the other four justices who voted with him in 2000) does not believe in deference to anything (the Constitution) or anyone (Congress)...but himself.