Mystery of Life Passage Is Not Judicial B.S.

SCOTUS Update: Monday was order day (nothing special really) and fake justice day -- both opinions were by Gorsuch, one a 5-4 further expansion of conservative arbitration law with various comments by me and a more traditional "punt"/minor case.

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Reference is made to this passage from Planned Parenthood v. Casey (abortion) in a discussion of "judicial bullshit," and other than penumbras and emanations, it probably in certain quarters is a top target.  Without going into the various intricacies of the discussion there, including a comment that suggests "b.s." is not necessarily a negative thing (okay), I push back on that argument at least to some degree. First:

The liar still cares about the truth. The bullshitter is unburdened by such concerns. Bullshit-related phrases like bull session or talking shit also suggest a casual, careless attitude toward veracity -- a sense that the truth is totally besides the point. Bullshit distracts with exaggeration, omission, obfuscation, stock phrases, pretentious jargon, faux-folksiness, feigned ignorance, and sloganeering homilies.

-- Laura Penny, Your Call Is Important To Us: The Truth About Bullshit

The last part does bring to mind criticisms of Justice Kennedy, who probably wrote that passage.  And, he does favor rhetorical flourishes that is open to such criticism. But, so what?  Any number of justices are as well, as shown by Rick Hasen's recent book on Scalia. My bottom line here would be to determine how bad a certain reference is, is it truly an empty comment.  I would take a generous approach that tries to get to what is being said.  Rhetoric flourishes or whatever deal with complex matters that is only determined by actual cases (see, e.g., Stevens' concurrence to Casey on application of doctrinal tests, which always are inexact things).  The reference does not fail in that respect.

Consider a range of things covered in substantive due process cases. There is the traditional test from the 1930s: "implicit in the concept of ordered liberty" such that "neither liberty nor justice would exist if [they] were sacrificed." Palko v. Connecticut.  Or, this from the flag salute case:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Both have received pushback and Justice Black, e.g., supported simply incorporating the Bill of Rights, instead of some "ordered liberty." But, he managed to find a way to exempt armbands for school children and find fault with the exclusionary rule while accepting the "one person, one vote" rule that is if anything less tied to actual text (and history/precedent).  And, what is "one's right to life, liberty, and property"?  The potential power that passage gives to courts is open-ended.  So, maybe this too is judicial b.s. After all, I really didn't read article. I don't think it is.

Doctrine as well as basic speech uses inexact terms, like "ordered liberty" or whatever, to provide a rough summary of complicated matters that wind up being decided by balancing various things. As Justice Harlan noted in his dissent in Poe v. Ullman (see also, his concurrence in Griswold):

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that, through the course of this Court's decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.

He continues but you might get the idea. Again, is this a form of "judicial b.s."?  Someone might say so, but it also is basically true. Of course, trying to determine what this means in action is a major debate and is complicated. A person can break down each sentence and find problems.  It is something of a parlor game akin to using one's own words against you because the other person is saying something with a caveat or views things differently.  Life is complicated and a starting premise helps.

Is the heart of liberty, "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life"?  The passage does not stand alone. It is preceded by a reference to "the private realm of family life" as well "personal choices a person may make in a lifetime, choices central to personal dignity and autonomy" protected by a stream of cases. Then Judge Stevens summarized it this way:

These cases do not deal with the individual's interest in protection from unwarranted public attention, comment, or exploitation. They deal, rather, with the individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny. The Court has referred to such decisions as implicating "basic values," as being "fundamental," and as being dignified by history and tradition. The character of the Court's language in these cases brings to mind the origins of the American heritage of freedom -- the abiding interest in individual liberty that makes certain state intrusions on the citizen's right to decide how he will live his own life intolerable. Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience and the restraints implicit in the federal system, federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases.

-- Fitzgerald v. Porter Memorial Hospital

In Meyer v. Nebraska, reaffirmed in Pierce v. Society of Sisters, the Supreme Court compared our idea of liberty to the regimentation of Sparta in Ancient Greece. Basically, "liberty" entails not being a "creature of the state," but one's own person.  One's concept of existence and their place in the universe is their own. This is a basic right of conscience and elsewhere (the opinion is not one passage) abortion is seen in that fashion. And, the range of views on "life" in the abortion debate shows this has special relevance here. They are for the individual to formulate, not the state to pick and choose, putting their thumb on the scales.*

The "requirements of a free society" in respect to privacy was discussed by Justice Douglas in Poe v. Ullman and looking at the underlining philosophy there helps to see why it is seen as so important to us. There is an overall truth there even if again you can debate particulars. The passage reflects that truth even though I do think that the justices might not have over the years done enough to flesh things out.  After the passage, we have this:

These considerations begin our analysis of the woman's interest in terminating her pregnancy, but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition, and so, unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

I included the long passage, which I do not grant is true in every aspect, to show the complexities go beyond the passage.  There are a range of things involved here. There is not just some sort of "judicial b.s." passage that is some sort of rhetoric flourish that covers up the complexities of the matter. The woman here in particular has a "liberty" to equally control her life, create her own personhood. And, there are a range of complications, including health and the developing human inside of her.

They are covered.  There is a lot of "b.s" raised when discussing the subject, some found in the U.S. Reports, but not that passage.

===

* I am not alone in thinking this, but it is somewhat of a minority view to consider this basically a religious freedom matter, aside from when conservatives want to do so to deny funds or something. This is unfortunate since it allows one side to wrongly seize ground there.

The "meaning of life" here is a sort of "universal truth," which is sometimes used to help define "religion."