By Jim Sedlak
There is a tendency among the general pro-life community, including myself, to focus all legal battles on the makeup of the Supreme Court. It was, after all, the Roe and Doe decisions of the Supreme Court in 1973 that unleashed decriminalized abortion on this country. So, if we are going to make progress, we must return to the Supreme Court and chip away at those decisions.
Because of this reasoning, election time can be dominated by visions of a pro-life Supreme Court. Potential justices on the Court are chosen by the president and confirmed by the Senate. Thus, races for these elected offices can easily revolve around whom the candidates would support as the next justice.
Yesterday we were reminded of the fact that the Supreme Court actually decides very few cases. Many of those that we would like to see settled by the Court never get heard. The primary reason is that the justices simply don’t have the time to give rulings on every worthwhile case brought to their attention.
This week, for example, the Court was asked to accept (i.e., grant certiorari) two pro-life cases. Both cases concerned a district court judge in California who had issued an order that blocked the release of any further undercover videos taken by pro-life investigative journalists at a meeting of the National Abortion Federation. One case is #17-202 (Daleiden, David, et al. v. National Abortion Fed., et al.) and the other is #17-482 (Newman, Troy v. National Abortion Fed., et al.). Both cases ask the Supreme Court to overturn the lower court’s order and allow the videos to be released—at least to those investigating crimes that may have been committed by NAF members. Although the cases were complex, the original judge’s decision appeared to revolve around his decision that there was no proof the videos uncovered criminal activity, and whether the confidentiality agreements signed by the journalists outweighed their First Amendment rights. Under the rules of the Supreme Court, in order to grant certiorari, at least four of the nine justices must agree.
The two pro-life cases were considered along with many other cases on Friday, March 30, and the Court’s decision was announced on Monday, April 2. It was disappointing that neither of the pro-life cases was granted certiorari. Both were turned down without comment, so there is no way to know why they were turned down—except for sheer numbers.
In the Supreme Court document, there was a list of those cases that were granted certiorari and it had one case on it. The list of cases denied certiorari had over 100 entries—all without comment. It appears the Court is just overwhelmed with people all across the country who want it to settle disputes. It simply cannot handle the volume. According to the Court’s website, approximately 7,000-8,000 new cases are filed in the Supreme Court each term. Plenary review, with oral arguments by attorneys, is currently granted in about 80 of those cases each term, and the Court typically disposes of about 100 or more cases without plenary review. That’s it. Out of 8,000 cases the Court makes decisions in about 180. That’s about two percent of the cases it is asked to review.
While it is disappointing that the Court did not accept these two cases, it is not surprising. The cases are not over. What was appealed to the Court concerned the release of the videos—not the final outcome of the case. There is still a live court case in California and the lawyers representing the pro-lifers are pursuing every avenue possible to bring about a victory.
But there are a couple of lessons we need to take from these events.
First is the importance of local judges and the judges on the district and appeals courts across the country. The election of local judges is sometimes an afterthought for many voters. Voters often spend a lot of time learning about the major candidates in an election and upon arrival in the voting booth, they realize that they must also vote for judges. That’s when quick selections are made without much prior knowledge. However, we must realize that, once elected, these local judges have a great influence on local pro-life activity.
Second is the importance of the process of selecting district and appeals court judges by the president and Congress. The judge in the California case was nominated by President Obama. The Senate refused to take action on him the first time he was nominated, so Obama nominated him a second time. He was confirmed by a vote of only 56-41 and took office in May 2013. Two years later he blocked the release of the undercover videos.
Although President Trump has received praise for his selection of appellate judges and for getting them confirmed, there are real problems in Washington, DC concerning district court judges. As documented in a January 2018 article in the National Review, “Only six district judges were confirmed in 2017. Twenty-two nominations were left languishing on the Senate floor at the end of the year, including twelve that had been awaiting action since October. And dozens of district-court vacancies that existed on Inauguration Day still await nominees.”
The National Review article examines the problems involved in the judge selection process, including the fact that any one of the two senators from a state that needs a district judge can effectively block the confirmation of any judge in the state. This is not law, but simply an old perk in the Senate—one that needs to be done away with.
This week’s inactions of the Supreme Court should be a wake-up call to pro-lifers across the country. You can bet that Planned Parenthood and its friends spend a lot of time courting judges and getting its people in district and appeals courts. In addition to saving babies at abortion facilities and educating our young people, we need to have dedicated individuals who focus on the courts and the judges. We need people who can also work to change procedures in the US Senate.
“Let the Supreme Court decide” is not an acceptable battle cry. We must act at lower levels if we are to save the babies.
Jim Sedlak is vice president of American Life League, founder of STOPP International, and host of a talk radio program on the Radio Maria Network. He has been actively involved in pro-life work since 1980.