Federalist Society agenda drives Supreme Court

I read with interest the editorial on the leaked opinion draft (“Women will lose control over their bodies. Who’s next?” May 4). Justice Samuel Alito’s abortion opinion plainly explains the reasoning they will apply: Precedent need not be followed unless the decision is “deeply rooted in the nation’s history and tradition — and implicit in the concept of order and liberty.”

This means they can choose the precedents that interfere with their right-wing, Federalist Society agenda and throw them out with Roe v. Wade. Since they are textualists (“Give the Constitution the meaning it had in 1791, except when we decide otherwise”), one obvious target is Gideon v. Wainwright. That case established the right to court-appointed counsel in indigency cases. The Sixth Amendment guarantees the right to counsel, but not to court-appointed counsel. The far right has never been happy with Gideon. Sending poor, ignorant, criminal defendants back to the 18th Century practice of facing today’s complicated criminal cases without a lawyer is clearly on the Federalist Society’s agenda. After all, Gideon was decided by a bunch of liberals in 1963, so it can’t be “deeply rooted in the nation’s history and tradition.” Why? Because we got along without it for 172 years.

But there is one decision that they will not overturn. Nowhere in the Constitution does it mention the Supreme Court’s power to declare laws unconstitutional. That was discovered by Chief Justice John Marshall in 1803 in a case called Marbury v. Madison. Do away with Marbury and you do away with the Federalist agenda. Worse, you leave the decision of what is constitutional to the Congress.

O.H. Eaton Jr. Sanford

O.H. Eaton Jr. is a retired circuit judge who served the court in Seminole County for 24 years.