I’m back after my short hiatus to spend time with in-laws. I survived quite nicely, it was fun actually. Life is full of surprises.

What to chat about today. There are so many outrages that selecting a topic on which to display my ignorance is not an easy task. But the abortion medication kefuffle in the courts managed to capture my attention after considering other possibilities.

The specifics are not complicated. A Trump appointed Federal Judge in Texas (Matthew Kacsmaryk) reversed a 23 year old FDA approval of the medication (Mifepristone) long used to induce abortions essentially. His decision essentially removed that as a remedy for unwanted pregnancies. In recent years, about half of the estimated 600 to 900 thousand annual abortions were terminated in this manner. The ruling is a big deal.

Within days, a Federal Judge in the State of Washington reversed that order in response to a number of Democratic Attorney General’s who anticipated the Texan’s conservative ruling. President Biden made a statement that the Texas action represented an assault on the Federal Drug Administration and, by extension, the federal government. The U.S. Department of Justice entered the legal fray along with the impacted drug companies.

Underlying the specific issue in contention are a bubbling set of oppressive legislative acts, either effectuated or contemplated. Conservative States are arming themselves, or thinking about at least, jailing those who seek abortions, as well as those who perform them, even those who aid in the transportation of those seeking such a remedy in another state or country, and so forth. The consequences include heavy fines, increasingly longer jail terms, and at least one state floated the idea of the death penalty which makes some logical sense if you see the termination of a fetus as murder.

This legal tempest raises an issue for me that I’ve noodled for some time now. Does anyone still believe that CONSTITUTIONAL LAW is something concrete or defineable which can be discerned through analytical analysis or judicial review. If that were the case, we would not see so many narrow judgments along ideological, if not partisan, lines. We would not have seen the emergance of the Federalist Society, a conservative body dedeicated to tilting the judiciary to the right. We would not see knock down battles over appointments to the High Court or the Federal Courts, nor would state High Court races be so hotly contested. Even a generation ago, the $40-plus million spent on the recent Wisconsin race for a spot on that state’s high court would have been unthinkable. Nor would anyone have predicted that such a race in a backwater state could possibly garner such national attention.

The thing is that justices, particualry on the Supreme Court, the federal appelate benches, or on State High Courts are no longer seen as diviners of some innate truth. They still wear the black robes, sit on platforms that rise above those pleading their cases, and conduct their deliberations in secrecy (usually). All such niceties are designed to sustain the illusion that they speak with some divine certainty. No rational person can possibly believe that nonsense any longer. Now, more than ever (at least recently) the principle of ‘post-decisionism’ comes into play. Justices know how they will decide as they go into a legal case, especially if it controversial and has partisan implication. Their arguments, deliberations, and consultations involve rationalizing their prior decision which they brought to the bench. All pretense to nonpartisanship is gone. They have become another branch pf political hacks though I love the hacks that support my view of the world.

As this becomes clearer, hardball tactics will increase. The liberal who won the Wisconsin race for the state Supreme Court has already been threatened with impeachment by a Republican supermajorty controlling state government (through gerrymandering). It likely will not happen but they might try simply because they don’t like her politics. Some observers criticized her becuse she was open about her opinions on abortion, voting rights, and so many hot button issues. They said that candidates for the Court should not reveal their likely opinions since that smarts of prejudging cases that will come before them. Are you freaking kidding me! Everyone knew her opinions as well as the opnions of her hard-right opponent. That’s why millions poured in from around the country to elect her AND to defeat her. No secrets there.

So, is this a new phenomenon? In truth, nothing is new. As I pondered our latest judicial crisis, my mind drifted back to just before the Civil War and right after the Fugitive Slave Act was passed in 1850. Two cases involving Wisconsin captured national attention in those dark days. Dred Scott, and his wife Harriet, separately filed petitions in a Missouri Court that they should be released from bondage after having spent several years in Fort Snelling, Wisconsin (the man who ‘owned’ them at the time was associated with the military). On the basis of once free, always free, the outcome of the case seemed certain. They would win.

It took 11 years for this drama to be decided. The result was the 1857 Dred Scott decision, termed by some the worst in Court history [It should be noted that the Court at that time was dominated by Southern conservatives]. Roger Taney, writing for the majority:

“They [African Americans] were at the time [of the Constitutional ratification] considered as a subordinate and inferior class of beings, who had been subjugcated by the dominant race and whether emancipated or not, remained subject to their authority, and had no rights or privileges…”

In short, blacks were not, and would never be, citizens who might avail themselves of the rights of citizenship.

BUT, and there often is a but, one Joshua Glover escaped bondage and fled to Racine Wisconsin around 1853. He was captured and jailed in Milwaukee pending being sent back into slavery acording to the infamous Fugitive Slave Act. But the same harsh divisions we see now in America were boiling then. An angry crowd surrounded the Milawukee jail, freed Glover by force and spirited him off to Canada where he found freedom and where a park honoring his name can yet be found in Toronto.

The story does not end there, however. Charges were brought against several individuals seen as responsible for freeing the prisoner in contradition of federal law, abolitionist Sherman Booth being one of them. They were convicted and faced fines and jail sentences. These cases made their way to the Wisconsin Supreme Court where the State’s High Court reversed their sentences. In effect, a political and ideological battle raged about the morality of slavery and the relative authority between the federal and state governments. Obviously, this is an abridged version of far more complicated events and legal arguments. But I do love one quote from the Wisconsin decision.

“In Virginia he [Glover] may be, indeed, a chattel; but in Wisconsin he is a MAN … the laws of Wisconsin regard him as a person here …”

Perhaps in response to the Glover issue, which garnered national attention, a group of two dozen or so mostly dissafected Whigs gathered in a school house in Ripon Wisconsin. Among their most pressing concerns was the scourge of slavery and that it might be extended into the West. They also feared that northern states might be forced to assist southerners in the perpetuation of this monstrous institution. So, they created a new party … the Republican Party. In several short years, they elected Abrahan Lincoln to the White House and the rest is history [Another note: Today’s Republican Party bears no resemblence to the liberal party that emerged in the mid 1850s].

What we see in the Judiciary is merely one reflection in the national rupture tearing apart the country. We saw it in the 1850s as well. The end result was a tragic Civil War. How will our cultural and judicial unrest end? I wish my spouse, a former official of the Wisconsin Supreme Court, were still around to chat with about such issues. She could at least tell me what I got wrong. She was good at that.]