Arguments to the contrary mistake the exception for the rule and wrongly align Jewish Americans with the regime that allows nearly unregulated abortions.
Arguments to the contrary mistake the exception for the rule and wrongly align Jewish Americans with the regime that allows nearly unregulated abortions.
A s a recent guest essay in the New York Times demonstrates, the “Jewish argument” for preserving Roe v. Wade is unpersuasive. Calls to uphold Roe, growing in number and in fervor as the Supreme Court is set to hear Dobbs v. Jackson Women’s Health Organization on Wednesday morning, tend to cite the principle that the Jewish tradition allows and possibly requires abortion in exceptional cases such as when a woman’s pregnancy threatens her health. The argument then sweeps broadly to contend that Jews therefore should support the extremely permissive abortion regime that the Supreme Court created in Roe and has maintained by judicial fiat ever since. Such an argument mistakes the exception for the rule and wrongly aligns Jewish Americans with the regime that allows nearly unregulated abortions.
We maintain that this regime, which we call the “Judicial Status Quo” (reflecting the active choice that the Court makes to maintain its grip on abortion policy rather than returning it to states), actually poses a substantial threat to the interests of religious minorities and that Jewish Americans should think twice before defending it.
As we have recently written elsewhere, arguments frequently raised about why Jews should defend the Roe regime do not hold water as a matter of Jewish theology, constitutional law, or political theory. Moreover, we contend that there are underappreciated benefits that Jews and other minority groups would enjoy under a decentralized post-Roe regime.
We write here to highlight another reason that Jewish Americans should favor ending this Judicial Status Quo. In doing so, we aim to build on the arguments recently discussed by Matthew J. Franck and Robert P. George in their excellent article “Roe Undermines the Supreme Court’s Legitimacy.” While every American should be concerned with the harms that Roe and its progeny inflict on judicial legitimacy, we think that they are particularly dangerous for Jews and other religious minorities.
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To appreciate just how corrosive the Supreme Court’s abortion jurisprudence has been, we must consider the courts’ crucial role as nondemocratic protectors of minority rights within our republican system.
The federal judiciary, comprising unelected judges with life tenure during good behavior, is our most counter-majoritarian constitutional institution. Insulated from political pressures, it is tasked with doing politically unpopular but constitutionally necessary acts.
For example, flag-burning has long been an unpopular form of expression that, but for the First Amendment, would be democratically banned in nearly all states. Politicians who would oppose a ban would likely be voted out of office or too afraid to speak up for fear of losing their jobs. The courts, by contrast, are uniquely positioned to stand up for unpopular speech, grounding their rulings in the demands of the Constitution as the supreme law of the land. In 1989, the Court did just that, invalidating state laws that banned desecration of the American flag in a case called Texas v. Johnson. Our point is not, of course, that adherents of minority religions engage in such disreputable behavior, but that various rituals and behaviors are more likely to fall beyond the bounds of what democratic majorities would protect. Courts, on the other hand, can protect such practices and constituencies — no matter how small they may be in number — so long as they maintain their constitutional legitimacy in the eyes of the thwarted majority.
How can they do so? Franck and George offer a good answer to this difficult question, by quoting Chief Justice Rehnquist: “The Judicial Branch derives its legitimacy not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution.” If judges expect Americans voluntarily to accept their rulings, many of which may thwart the popular will, unelected judges must be viewed as grounding their decision in something permanent and widely respected — namely, the Constitution.
As many legal scholars — and, indeed, Supreme Court justices — have pointed out, this arrangement is precarious. Judges place what James Madison called “parchment barriers” before majorities when they declare democratically enacted rules invalid. The executive branch has guns, the judicial mere gavels. Gavels, that is, made mighty by the deference afforded to them because of their role in our constitutional order. If an overwhelming majority ever chose to ignore a court’s rulings, it could do so with impunity, replacing the rule of law with mob rule and forever enfeebling the judiciary.
What stops presidents, governors, county executives, or even masses of unhappy citizens from using their strength in numbers and firepower to render the will of the people supreme over the declarations of a powerless tribunal? It is the legitimacy granted to judges as faithful and impartial arbiters of the Constitution and statutes. Given this fact, Franck and George recognize that the “deadliest posture for judges to place themselves in is one in which it is evident that they themselves have let politics intrude on the law.” Franck and George correctly point out that this has nothing to do with public opinion on a given matter and everything to do with the manner in which judges decide cases. By doing recognizably legal work, not bending the rules for any favored issue or interest group, faithfully applying the law of the land, and certainly not imposing their own preferred outcomes, judges give Americans reasons to adhere to the Court’s holdings. After all, while judges may be uniquely suited to interpret legal texts, there is no reason to defer to their political judgments. To maintain sustainable influence, courts need Americans to accept that judges are hewing to the function for which they are suited and constitutionally empowered.
This is especially true when it comes to a tiny minority like Jews in the U.S. Understandably, American non-Jews — that is, the overwhelming majority of the population — often do not know or have reason to care about the same things we do. Our rites are indeed unique and liable to experience legal burdens among even well-meaning political communities whose rules incidentally burden Jewish practice.
Often this becomes most pronounced in displays of excusable ignorance. For example, prison officials in West Virginia once prohibited a Jewish prisoner from studying the Bible alone, while allowing members of other faiths to do so, because of their mistaken belief that Judaism prohibited its adherents from engaging in studying the Bible without a quorum of ten men. The officials claimed — and probably believed — that they were acting to protect the sanctity of Judaism but were actually denying a Jewish inmate his constitutional rights. This is exactly the sort of injury that courts are uniquely able to fix.
But impositions on Jewish life come in malicious forms, too. A movement is afoot to ban circumcision, which for Jews is simply nonnegotiable; so too with kosher slaughter, which has already been restricted or outright banned in several European countries.
If local government were to ban these or other central Jewish practices, Jews would turn to the courts to vindicate their rights under the First Amendment and force the offending entity to change course. Courts have already frequently played this role as protectors of minority faiths.
This brings us to Roe, a decision that threatens the legitimacy of the judiciary like no other. Not only does the case involve an issue that millions of Americans consider an issue of life and death, but Justice Harry Blackmun’s reasoning and conclusions in the Court’s majority opinion make no pretensions of being grounded in the Constitution. Even many liberal legal scholars who oppose restrictions on abortion — including the late Justice Ruth Bader Ginsburg — have admitted that the opinion was legally deficient. Liberal law professor and supporter of abortion access John Hart Ely famously wrote that Roe was “a very bad decision” not only because it was “bad constitutional law” but because “it is not constitutional law and gives almost no sense of an obligation to try to be.”
There is simply no persuasive argument that the text of the Constitution requires every state to provide a nearly unlimited right to abortion. This is why so many of Roe’s defenders simply claim that the decision should be maintained because it is some sort of inviolable precedent, or for reasons that have nothing to do with its legal merits. Such arguments do not meet the standard for maintaining judicial authority that we laid out above. Any decision that reaffirms Roe and maintains the Judicial Status Quo strikes another blow against judicial legitimacy.
Every abortion-related decision that has followed in Roe’s wake has eroded the Court’s image as a neutral arbiter engaged in law rather than politics. Justice Sandra Day O’Connor recognized this phenomenon in 1986, in an abortion-related case called Thornburgh. The Thornburgh Court took a preliminary question about procedure and, in a leap of judicial maximalism, issued a judgment on the merits of the case. In dissent, Justice O’Connor wrote:
This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. . . . Today’s decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion. The permissible scope of abortion regulation is not the only constitutional issue on which this Court is divided, but—except when it comes to abortion—the Court has generally refused to let such disagreements, however longstanding or deeply felt, prevent it from evenhandedly applying uncontroversial legal doctrines to cases that come before it. That the Court’s unworkable scheme for constitutionalizing the regulation of abortion has had this institutionally debilitating effect should not be surprising, however, since the Court is not suited to the expansive role it has claimed for itself in the series of cases that began with has claimed for itself in the series of cases that began with Roe v. Wade.
The Supreme Court should avoid taking another step down the disastrous path toward delegitimization by changing course and finally overturning Roe.
Justices of the Court may worry that doing so will draw the ire of minority groups, such as Jews, that they do not wish to burden or offend. They should not give in to such temptations, though. In fact, quite the opposite is true. American Jews, among other minority groups whose religious practices are different from most Americans’, need the Court to maintain the strength of its parchment barriers. Getting majorities to go along with counter-majoritarian rulings is a precious function of our constitutional order, and it is difficult, though we tend to take it for granted today. We should not.
Courts can help their cause by exercising recognized forms of legitimate judicial reasoning and by grounding high-profile decisions in clear rules traceable to the Constitution. We cannot afford to be flippant in constitutional interpretation, lest the Constitution become a meaningless talisman invoked to justify nakedly political decisions, and lest majorities begin to disregard judicial decisions, imperiling the Court’s ability to stop them when we need them to.
To the extent that the Court has already done so, as in cases such as Roe and Casey, it has put its most important ability in jeopardy and ought to reverse course immediately. Because once the Court’s counter-majoritarian power is gone, it will be near-impossible to recover.
Howard Slugh is the general counsel for the Jewish Coalition for Religious Liberty. Tal Fortgang is a law student and Tikvah Legal Fellow.