Judging Freedom - Protesting Justices a Good Idea?

Episode Date: May 6, 2022

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Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Friday, May 6, 2022. It's about 1135 in the morning here on the east coast of the United States. Just turning my cell phone off. And, of course, the brouhaha, and it's more than a brouhaha, the serious reactions to the leak of the draft opinion by Justice Samuel, I almost said Scalia, Justice Samuel Alito of the Supreme Court, which if it becomes the final opinion or anything like it becomes the final opinion of the court, will reverse Roe versus Wade and the case that upheld Roe v. Wade, Planned Parenthood v. Casey. That reaction continues, and now it's bordering on the violent.

So this morning I learned from my parish priest out here in the country, in northwest New Jersey that every Catholic church in the country has been warned about threats to disrupt mass on Sunday by pro-abortion protesters dressed in handmade garb. You know the novel The Handmaid's Tale by Margaret Atwood, which portrays a dystopian future in which women are just the slaves, the servants of the males. These pro-abortion folks apparently plan to dress this way. I mean, who cares how they dress? But disrupting a mass, of course, would be interfering with the free exercise of religion on private property, and that's going to implicate the police, and it's going to be a mess. So everybody in the Catholic world in the United States is getting ready for that. Add to that public threats to demonstrate in front of the private homes of the members of the court. Now, I assume this is in front of the homes of the five

members who purportedly are in the majority. We know Justice Alito is the author. We are assuming that the other four members in the majority are Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. So obviously there's a way to find out where they live and these protesters are going to go to their homes. I mean protesting at the home of a life tenured judge is ignorant and absurd. Judges are not answerable to the public and properly so and that's the way the judiciary was created. The whole purpose of an independent judiciary is to be anti-democratic, to interpret the Constitution, interpret the laws, uphold the rights guaranteed by the Constitution or by the natural law, the highest of which is the right to live and not to answer to the people.

It is the duty of the judicial branch to interpret these things. Legislature can write whatever laws it believes the people want. Presidents, for the most part, enforce federal laws. Sometimes they don't enforce laws that they don't like. Sometimes they make federal laws. Sometimes they don't enforce laws that they don't like. Sometimes they make up laws. Presidents are answerable to the people if they want to run for re-election and they need a certain level of popularity in order to gain sway with the Congress. The House of Representatives is answerable to the people because it runs for re-election each year. The Senate is largely answerable to the people because one-third of the Senate

runs for re-election every two years. But the judicial branch is intentionally life-tenured, aloof, secretive, and removed from the public square. It should not care what the public thinks. Now, there's a very moving paragraph or two in Justice Alito's opinion in which he said the Roe versus Wade opinion claimed the United States was divided on abortion. It was in 1973, but nothing like today. And the authors of Roe versus Wade hoped that the opinion would unite America. My goodness, no opinion in the post-World War II era has been more divisive than Roe versus Wade. So Justice Alito is hoping that allowing the people's representatives to decide what to do about abortion will be a little bit less divisive. So far, that has obviously not been the case. I mean, normally these opinions come out. Certainly the most contentious opinion of the spring term would come out at the end of

the term, which this year would be the very end of June or the very beginning of July. And then the members of the court are scattered to the four corners of the earth for vacation, for lectures, for whatever they do, Justice Breyer to retire and to be replaced by Judge soon-to-be Justice Jackson. And if there's a brouhaha, it's going to happen while the justices are not here. But this brouhaha is happening now. I just wish that those who fervently support abortion would respect and understand the system. It's obvious that somebody, and again, we don't know if it's a pro-abortion or pro-life person, whoever leaked this opinion does not respect the system. But please remember, if the judiciary becomes responsive to the crowds in the street, then it's not a judiciary.

It's just another legislature. What we want and what the founders gave us is an independent judiciary that doesn't care what the crowds in the street or the editorial writers or the talking heads or the Congress or the White House wants. One that interprets the laws that the legislature has legislature is written and the Constitution as it was written when ratified and any other rights that may be connected to the Constitution that come from our humanity. The Fifth Amendment proclaims that the right to live is a fundamental liberty. The 14th Amendment proclaims that the right to live is a fundamental liberty, and it commands that the states protect life equally. So if they're going to protect postnatal life, you and me, from homicide, they have to protect prenatal life from homicide as well. If you are pro-life as I am,

there is consolation in this. Abortion is a monumental evil, the slaughter of the most innocent among us. The fact that a government can permit this slaughter means the government is tyrannical. How does the government decide what class of people to permit to be slaughtered? Who will they slaughter next? So when confronted with a monumental evil, you want to reduce as much of it as you can. The real goal is to reduce it entirely so that abortion becomes unfathomable, unfathomable in our heads and in our hearts that innocent babies can be slaughtered for convenience. We're not there yet, but if Justice Alito's opinion becomes the law of the land, we are a step closer. Judge Napolitano for Judging

Freedom. closer. Judge Napolitano for judging freedom.