Agreement between progressives, conservatives

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It may be hard for you to believe, but today where liberals and conservatives seem to always be at each other’s throats, there is a group of individuals who are not.

This is an ensemble of nine people of different ages, genders, and — most important — different political backgrounds. They meet regularly, agreeing most of the time.

They meet in one of the most respected and exclusive clubs in the United States. Since it’s inception in 1789 there have been less than 120 members.

Even though they may be political opposites, some in this organization have built lifelong friendships, two have been known to vacation together.

Of course, I am talking about the United States Supreme Court, where consensus is the rule.

Last year the SCOTUS ruled unanimously against the National Collegiate Athletic Association, saying the NCAA could not stop certain payments to college athletes. After the ruling, Trey Wingo, a former ESPN host, tweeted this: “A 9-0 Supreme Court ruling is the equivalent of finding a unicorn and a Yeti at the same time under a rainbow with a pot of gold and they’re both speaking 3 languages.”

He could not be more wrong. Last year alone, there were six unanimous votes by the Court during a two-week period.

During 12 years between 2008 and 2019 — according to SCOTUSBlog, the last time they published this data — 9-0 rulings by the Supreme Court ranged from a low of 36 percent to a high of 66 percent. When you include 8-1 and 7-2 rulings, most cases have agreements that cross the political isle. 

On the other end of the scale is the split decision of 5-4. These are the ones that get the most attention from the press. These are in the minority each year, amounting to around 19 percent of cases.

The 5-4 split decision gets all the attention because it usually revolves around big issues like same-sex marriage, universal health care, church-state relations and abortion. These issues affect us all.

When one of these decisions goes against a political party — right or left — the losing side screams like a stuck pig.

After the leak suggesting a possible overturn of Roe v. Wade, it’s the Left doing the screaming.

What do legal scholars on the left have to say about Justice Samuel Alito’s draft to overturn Roe?

In the Wall Street Journal weekend review, distinguished liberal Yale law professor Akhil Amar refuted critics of the Alito draft. He writes, “The Supreme Court’s 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs [Dobbs v. Jackson Women’s Health Organization] draft...In Roe, the Court did not even quote the constitutional language it purported to interpret in handing down its ruling—the Due Process Clause of the 14th Amendment.”

He concluded his article: “I am a Democrat who supports abortion rights but opposes Roe. The Court’s ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I’m wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.” 

The late Supreme Court Justice Ruth Bader Ginsburg herself  was not a fan of Roe v. Wade. She felt Roe was “too sweeping” in its ruling, leaving it “vulnerable to attacks.”

Let’s get one thing straight. If Roe v. Wade is overturned, it will not eliminate abortion across the country. Abortion laws will revert to each state where it belongs. In New York, you will still be able to get an abortion up to 40 weeks of gestation. Other states with few to no restrictions include California, Colorado, Oregon, Vermont, Alaska and New Mexico.

I won’t be surprised if the ruling — when it overturns Roe v. Wade — is not a 9-0 ruling. I seriously doubt it will be a 5-4 decision or even 6-3. 

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Note: Conservative Justice Anthony Scalia and Liberal Justice Ruth Bader Ginsburg were good friends who enjoyed each others’ company outside the Court. They celebrated each new year together with their spouses. There is a photo from 1984 of them riding an elephant while on vacation in India.