The Supreme Court Vacancy and the Limits of Compromise

F ollowing the news of the death of Ruth Bader Ginsburg, a sense of dread took hold of observers across the political spectrum. During the ever-shortening period after the passing of a justice when partisan political reactions are still thought to be in bad taste, left and right alike worried that a Supreme Court vacancy will only worsen the civil strife and political enmity already at fever pitch in the country. My colleague Mark Wright spoke for us all in this respect when he said, “The Götterdämmerung is upon us.”

David French and Jonah Goldberg were among those on the right who tried to forestall this potential political apocalypse by proposing a compromise that might de-escalate tensions surrounding the Court. A few of my colleagues have responded to these proposals by pointing out the prohibitive difficulties that would be involved in their execution. But there is, nevertheless, a consensus among those on the right that the country would be better off if the Court was less central to political disputes than it currently is. The aim of the French-Goldberg proposals — to drain the Court of some of its political valence — is a noble one.

It is also impossible under the current circumstances. And not for any contingent social or political reasons having to do with the current state of our politics, but because of the nature of free government itself. James Madison and Thomas Jefferson explained this to us some time ago. In a free society, they contend, the will of the majority must always prevail. But in order to be valid, this majoritarian will must not violate the rights of the minority. Jefferson lays out this principle in his first inaugural address:

All too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression.

Ever since the Supreme Court’s decision in Marbury v. Madison, it has taken upon itself the responsibility of defining and delineating the boundaries of majoritarian prerogatives and minority rights. This responsibility is an immense one because free government functions as such only when the majority and the minority agree as to what their respective rights and prerogatives are. If there is widespread disagreement on this question, then the game is up: Liberty and democracy no longer coexist.

For example, if those in an electoral minority believe that the doctrine of majority rule is being used as a pretext to infringe upon their inviolable rights, they’re unlikely to regard the majoritarian will as a legitimate one. Similarly, if those in the majority believe that minority rights are being appealed to only in order to obstruct policies that have justly garnered more support than have others, they might just ignore the protests of the minority and forge ahead.

Consequently, members of a free society must agree in advance — before the voting starts — on certain fundamental questions. Specific rights of the minority and prerogatives of the majority must be regarded as legitimate by all parties in all circumstances if the regime is to endure. In Madison’s own words, the existence of free government in this respect depends upon the general agreement of the population concerning the “great principles of right and wrong.”

When given the opportunity, Madison made good on his word. He placed these “great principles,” to borrow a phrase from the late Justice Jackson, “beyond the reach of majorities” by enumerating them in the Bill of Rights.

We know, however, that the Bill of Rights does not guarantee the shared commitment that Madison was looking for, simply because it’s open to interpretation. The Founders had to reckon with this fact themselves, as the bitter strife between Federalists and Republicans throughout the 1790s demonstrates.

The Supreme Court, furthermore, has no more important job than that of interpreting the Bill of Rights. Whenever the Court issues a ruling that involves one of those rights, it sets the conditions for majority rule and minority consent in American society. In effect, it says to the American people, “here are the things that a legitimate government can and cannot do.” For this reason, when the Court gets the Bill of Rights wrong, when it adds or subtracts the wrong issue from democratic processes, it risks disaster. Removing a controversial issue from the arena of politics and forcing a single position on the entire country upsets the delicate balance between majority and minority prerogatives upon which free government depends.

This is exactly what happened in the infernal Dred Scott decision. When Chief Justice Roger Taney, in his majority opinion, wrote that blacks “had no rights which the white man was bound to respect,” he implicated the Supreme Court in the most viciously contested political issue of the day. For those in 1857 who affirmed the rights of black Americans, there could be no de-escalation after Dred Scott. The Court had made itself a target of the political efforts of the anti-slavery movement. The members of this movement were not about to change their widely held position on the manifest applicability of the Bill of Rights to their black compatriots on account of the Court’s ruling. On the other hand, the ruling fueled the passions of the pro-slavery faction. When the Supreme Court issues a ruling that does violence to the Constitution, it does not remove the issue in question from the field of political conflict; it merely picks a side.

Therefore, when there’s a fundamental dispute in the country over the Bill of Rights, over what the political definition of a human being is, compromise and de-escalation are impossible. Tensions will inevitably build until they come to a head and one side definitively wins. “Winning,” in this sense, means creating a national context in which there is no longer significant dispute about the matter in question. On most political issues, this kind of unanimity is impossible. But when the Bill of Rights is in question, it’s indispensable. The enormous costs — in blood, treasure, suffering, and civil unrest — incurred during the Civil War, Reconstruction, and the civil rights movement demonstrate how far the United States has been willing to go as a nation to ensure that the correct interpretation of the Bill of Rights prevailed. On the matter of equal rights, no compromise could be allowed. No suggestion that blacks had some “rights that the white man was bound to respect” could be tolerated.

Everything I have said above about the Dred Scott decision is equally true of Roe v. Wade. When the Court took the issue of abortion off the electoral table, it told pro-life Americans that when they win majorities, they cannot restrict abortion, and when they lose, they have to count the proliferation of abortion among the just prerogatives of their opponents. This was never going to fly for the same reason that Dred Scott was never going to fly; too many Americans believe that the Bill of Rights applies to the unborn. When they see the Court rule to the contrary, they see the judiciary picking a side — the side of illegality. It’s another scenario in which no compromise can be broached. Either unborn children are humans or they are not. This question, of who is a human and who is not, is one of the few in American politics where the debate really is a zero-sum conflict, where there will be no settlement without clear winners and losers.

This is why the appointment of Supreme Court justices is precisely the one area of American politics where Republicans cannot and should not compromise. Constitutionally literate justices must be appointed until Roe is overturned and sanity restored to jurisprudence. During the course of these appointments, tensions will escalate and there will be bitter strife in the body politic. But on the question of abortion, this enmity must be allowed to serve its purpose: We must have the fight once and for all and be done with it. After Roe is overturned, pro-abortion Americans may be unwilling to tolerate the result, to the point of violence. So be it — where questions of human dignity are concerned, we’ve been there before.

But in fact I doubt this would be the case, given the fact that overturning Roe wouldn’t ban abortion. It would simply make it a live political issue again.

There are few areas of politics in which one can afford to be uncompromising and absolutist. But it’s generally the case that when being uncompromising is morally permissible, it’s also morally obligatory. Abortion is a case in point. We cannot continue to enjoy a system of free government in which the rights of both the majority and the minority are respected unless the killing of the unborn is no longer considered a precondition of civic engagement. Americans will be able to strike compromises on matters concerning the makeup of the Court after Roe is gone, but not a second before that. When disagreements arise that involve the nation’s working definition of humanity, there is no possibility of reconciliation before victory.