Justice Souter goes home and the Obama Court Begins

This President who does not recognize the Right to Life will now shape the legal landscape of this Nation for years to come.

WASHINGTON (Catholic Online) - Supreme Court Justice David Souter has informed the President of his intention to retire when the current term expires. The announcement was a surprise to Court watchers who had considered age and health to be the main criteria which any sitting Supreme Court Justice would use in deciding to step down. David Souter at 69 is young, at least in comparison to the current Court. His health is fine.

Apparently, he just wants to go home to New Hampshire and live as a gentleman farmer. This private man has made it clear to his friends that he has never been comfortable in Washington D.C. Sources indicate that Justice Souter had waited to determine whether his colleagues, Justice John Paul Stephens or Ruth Bader Ginsburg would retire first. When he determined that neither age, (89) in the case of Justice Stephens, or health concerns, in that of Justice Ginsburg, was going to lead either to leave their place on the bench, he made his move, without fanfare as is his style.

I remember his appointment in 199o by the first President Bush. As a constitutional lawyer concerned over the removal of the fundamental right to life by the High Court in its horrid opinions in Roe and Doe, I was profoundly hopeful that Souter would see the error and become a part of overturning them. Believe me, I had to be convinced by others to so hope because I was naturally suspect. New England born and bred, I came from the other side of the tracks from Justice Souter.

He was a graduate of Harvard College and Harvard Law School and attended Magdalen College at Oxford University in England. He was what we called in my blue collar youth in Dorchester, Massachusetts a New England Brahmin, a blue blood. I wanted to believe what other Pro Right to Life lawyers told me that he was a "thoughtful conservative", would see that Roe was wrongly decided and out of intellectual integrity become a part of history, bringing its resulting bloodbath to an end. You see, I have never seen myself as a "Conservative" or a "liberal". I just knew that calling the intentional killing of children of children in the womb a "right" by finding this "right" out of whole cloth and rooting it in a "penumbra" of privacy was evil and had to be corrected.

What became clear once he assumed the Bench was that this man whom many called a "stealth candidate", allegedly getting in under the radar screen because of his manner but "one of us" secretly as some of my colleagues back then insisted, was anything but Pro-Life. He voted to uphold Roe in Panned Parenthood v Casey (1992), though allowing some limitations at the State level. He helped to author these deadly words:

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"Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned. We are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed, in three parts: 1.The right of the woman to choose to have an abortion before viability. 2. The State may restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman's health. 3. The State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child."

In the last Presidential campaign I was one of many who beat the drum of caution that one of the most important concerns in the selection of the President of the United States was that he or she would shape a new Supreme Court. Depending on its make up, such a Court could finally jettison the Court created "right" to take the innocent human life of our first neighbors in the womb or expand it. I insisted that we should do all we can to elect someone who would appoint members to the Court who would restore the true Right, the pre-eminent Right to Life, written in the Natural Law and recognized by the American founders.

Sadly, even some of my Catholic colleagues who formerly stood on the side of the children, like Nicholas Cafardi and Doug Kmiec, disagreed and undermined these efforts. With a strained logic they argued that overturning Roe would simply kick it back to the States and that the so called "strict constructionist" approach of the Bush administration and the McCain campaign would produce no change in the outcome.

I made it clear then and I reiterate the point, I am not satisfied with "strict constructionism", a legal theory which insists that Judges must only construe the Constitution and never create new law thereby usurping the legislative function. This has become the mantra of the conservative movement as it relates to the appointment of Judges. I am a Natural Law proponent and believe that the recognition of the Right to Life enshrined in the United States Declaration is rooted in a Western jurisprudence which long recognized the existence of a Natural Law.

I also support a personhood amendment to the U.S. Constitution to restore the recognition of the fundamental right to life. However, I would rather have a strict constructionist who recognizes the blatantly flawed reasoning of the Roe and Doe opinions and overturns it then a Justice who thinks that the law is simply what Judges say it is and that Precedent, even if it flies in the face of fundamental rights, must always be protected, like Justice David Souter.

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Sadly, few paid attention and we will soon reap the results. Justice Souter is going home to New England and the President of the United States will now reshape the Supreme Court. There is little doubt that President Obama will not only be able to replace David Souter but that Justices Stevens and Ginsburg will follow David Souter into retirement soon. This President who does not recognize the Right to Life will now shape the legal landscape of this Nation for years to come.

The retirement of Justice David Souter makes the Personhood Amendment to the U.S. Constitution the single most important political and policy effort for anyone who recognizes that the Right to Life is not a single issue but a foundation upon which the entire infrastructure of Human Rights rests. After all, rights are goods of the person and when Innocent Human Persons in the first home of the human race, our first neighbors, can be killed and the positive law does not protect them but the perpetrators, we are on a perilous path. Justice Souter goes home and the Obama Court Begins. I have been to the Supreme Court on several occasions and as I conclude I offer the prayer recited before every Supreme Court session "God save this Honorable Court."

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