The 14th amendment of the US Constitution holds that:
… [no State shall] deprive any person of life, liberty, or property, without due process of law…
In the Supreme Court, this has led to a balancing test between an identification of the right and the justifiability of a state’s intrusion upon it, most famously on 22 January 1973 when the US Supreme Court handed down Roe v Wade.
While Roe v Wade is itself now history, the debate and its many subsidiary themes including a child’s rights, women’s rights, men’s rights, states’ rights and judges’ duties, continue.
Today, my balancing act is no comment on that debate but two observations as to the march of that history.
First, the public perception of judicial independence.
While the appointment of Supreme Court judges is a highly politicised process, it was not until the end of the 20th century that it became a highly public process as well. President Nixon was silent on Roe v Wade. A decade later, President Reagan insisted albeit to the ridicule of many that his private views did not affect his choice of judges to apply the law. Fast forward a further three decades; on 21 January 2021 in their “Statement from President Biden and Vice President Harris on the 48th Anniversary of Roe v. Wade”, the leaders of the US executive said:
The Biden-Harris Administration is committed to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe.
The argument against this statement is that it is foreign to the separation of powers to require a judge to show a predisposition as a prerequisite for appointment. The argument in favour is that this has always happened in the real world and it is time to treat the public as grown ups.
Whichever argument is right, it is one thing for the executive or the legislature to complain about a given judicial decision. It is quite another to raise the bar to “foundational precedents”. Under the common law, judicial decisions are precedent. Is Plessy v Ferguson, the 1896 decision which upheld post-Civil War segregation laws and which remains a precedent neither fully nor formally overturned, a “foundational precedent” to be respected?
Second, there is the issue of at what time what women have had what rights.
Whatever comprises a woman’s rights, our recognition of those rights has changed. However, it is apt to remember that we are human and no change is linear. Public sympathy is as finite as it is fickle, and the 19th century fight for it between emancipators of women and emancipators of slaves is as fascinating as it is largely untold. Then there was the 1839 reform wrought by the Mississippi Married Women’s Property Law, which gave fresh protection for the property of women who married:
… when any woman possessed of a property in slaves, shall marry, her property in such slaves and their natural increase shall continue to her, notwithstanding her coverture…
