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Bob Davidson
Janalu,
I personally believe Roe v. Wade was a case where Justice Brennan wanted the result and came up with a reason to achieve that result.
In law school, the professors tell the students over and over that the purpose of a legal education is to make the students “think like a lawyer.” Part of that thinking is understanding the English Common Law method of applying past judicial case reasoning to present situations. Laws in our tradition are fairly general, with the idea being that a statute does not cover every variation of situations that people can come up with.
Appellate courts review the decisions on cases appealed from trial courts (basically an appeal is a claim that the trial court made a mistake in following the law and the case needs to be corrected) and they “publish” the decisions they consider significant enough to be the law for the trial courts. These published decisions are binding on the trial courts in the jurisdiction. In both the federal and state system we have two levels of appellate courts, courts of appeals and a supreme court. A supreme court decides if a court of appeals has correctly interpreted the law in a case appealed to them. In the federal system the courts of appeals cover a geographic area called a circuit: Texas is in the Fifth Circuit, along with Louisiana and Mississippi. The trial courts in that circuit are bound by the decisions of their court of appeals. It’s a little different in the state courts, but the same general idea. Federal trial and bankruptcy courts also publish the cases they believe are significant; state trial courts don’t.
Law students read old cases, analyze the reasoning, and compare that reasoning to the reasoning in other cases. Most start out like I did, liking cases that had results we approve of and disliking cases where we didn’t like the outcome. If the teaching works, we come to believe that the process is much more important than the outcome, i.e., the means is more important than the ends. That’s went you start thinking like a lawyer. Law school exams are generally based on the analysis of what’s called a fact pattern – a story. The professors grade on “issue spotting” – finding and analyzing the legal issues raised in the story. Amazingly, it pretty much mirrors what I’ve been doing for all these years as a lawyer.
When I try a case, the judge makes decisions about the law constantly: deciding what evidence to consider, what questions are proper, what law to apply to the case, and how to apply it. I present a viewpoint, the other lawyer a contradictory one. That’s the point top all that “objecting” you see in courtrooms – we have to point out to the judge when she does something we think is wrong, “preserving error.” If a trial lawyer believes that a judge has misapplied the law in a way that changes the outcome of the case, we can ask the court of appeals to review these mistakes. An appellate brief sets out point by point the specific errors the trial judge made, why they are errors and what the ruling should have been. If the court of appeals agrees, they send the case back to the trial court with instructions as to what they found she did wrong. If they think an important principle is involved they publish the case.
Federal judges are appointed by the President and confirmed by the Senate. High-minded Presidents like the Bushes try to appoint fair and impartial judges who share their general legal philosophy. When Gerald Ford spoke at our law school, he did a question and answer where we asked him about how he appointed judges. He said he looked at the ABA recommended candidates by reading some of their reported cases and appointing the ones whose reasoning impressed him. More activist presidents like Clinton and Obama appoint liberal activists. Republican Presidents tend not to be successful in appointing activists (Warren and Brennan were big-time liberal activists appointed by Ike.) Ginsburg was the general counsel of the ACLU. Traditionally, the Senate has refused to confirm conservative activists, like Robert Bork.
Obviously, as a practicing lawyer, you advocate for your client. Activist judges tend to be ends driven and think how they get there isn’t that important.
My problem with Roe v. Wade isn’t only that it is clearly written to justify the conclusion, but that it took a political problem and made it legal decision. It is generally agreed that the Supreme Court has the power to decide the constitutionality of laws, but laws are supposed to be created by the congress and approved by the President. Short-circuiting this process is, to me, a form of autocracy, especially when the law is as contentious as abortion.
Sorry for the long-windedness.
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