Syracuse University’s Newhouse School of Public Communications just awarded its Toner Prize for Excellence in National Political Reporting to Politico for its pieces relating to the Supreme Court and abortion. This series infamously began with the publication of the Court’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization. The Newhouse School award announcement notes that the “revelation intensified scrutiny of the tactics of the conservative legal movement in building a new Supreme Court majority during the Trump presidency” and “transformed the political year, putting abortion rights front and center in the 2022 midterm elections.”
The honors went to reporters Josh Gerstein, Alex Ward, Peter Canellos, Hailey Fuchs, Heidi Przybyla, Elena Schneider, and Holly Otterbein. Politico published the following excerpt from Josh Gerstein’s acceptance speech summarizing his work:
Over the past years it now seems so many of the major policy decisions on abortion, health insurance, climate change, guns are resolved in the courts and often at the Supreme Court. In fact, it often seems like litigation has replaced legislation as the preferred means of advancing one’s agenda in this country. Whether that’s healthy or unhealthy in a democracy is a valid topic for debate, but what’s clear is that we in the media need to up our game covering the third branch of government.
This statement reflects a stunningly short memory of what the Supreme Court was doing for over half a century prior to the emergence of today’s originalist majority. While the Warren Court began with groundbreaking and long overdue civil rights decisions, it would also become notorious for activism over the course of the 1960s in which justices—with heavy-handed decisions in areas ranging from reapportionment to criminal procedure—readily substituted their policy judgments for those of legislators.
Miranda v. Arizona (1966) prominently invented the requirement of police warnings to be read to criminal suspects. However sensible the rule turned out to be in practice, it was invented para-constitutional law not coming from the Constitution itself. It obliterated the notion of deference to legislatures on police tactics, and the Court decades later struck down Congress’ prescription to avoid coerced confessions as inferior to its own.
Even the Warren Court at its most controversial appears more modest than the rootless activism of the Burger Court during the 1970s. In Furman v. Georgia (1972), the Court brazenly invalidated the death penalty as it then stood in all fifty states. While the judicially imposed moratorium on the death penalty would not last, the Court would develop its own set of standards and restrictions for capital cases over the next several decades, and the liberal bloc has signaled its desire to eliminate the death penalty entirely.
Of course, Roe v. Wade (1973) was the epitome of rootless judicial activism, overriding the people’s elected representatives on the issue of abortion for nearly half a century until Dobbs. That the decision was egregiously wrong should have been widely recognized from the beginning. As the Roe decision was being formulated, Bob Woodward and Scott Armstrong’s expose of the Burger Court in The Brethren recounted the surprise of law clerks witnessing the justices “so openly brokering their decisions like a group of legislators. . . . There was something embarrassing and dishonest about this whole process. . . . The Court was going to make a medical policy and force it on the states.” Roe was just the most dramatic step in the Court’s decades-long imposition of the standards of the sexual revolution as constitutional law, culminating of course in the Court’s eventual redefinition of marriage by fiat.
So Gerstein has it completely backwards when he mentions abortion as an example of judicial policymaking at a time when the Court (in Dobbs) has returned that issue to the legislative process.
Neither has the Court commandeered health insurance policy; even if it had garnered enough votes to strike down Obamacare in its entirety, which it didn’t, it would have operated from Article I principles and an expectation that Congress do its own dirty work (such as imposing new taxes) without relying on the Court to rewrite its laws.
And Gerstein’s invocation of climate change would have been more apt sixteen years ago, when a 5–4 Court in Massachusetts v. EPA engaged in freewheeling interpretation of the Clean Air Act to override the EPA’s refusal to regulate greenhouse gases. In last year’s decision in West Virginia v. EPA, by contrast, the Court reined in an agency that used an extravagant reading of the Clean Air Act as a power grab in order to justify draconian emission reduction mandates. The justices were not coopting Congress, but ensuring that elected representatives would not be coopted by unelected bureaucrats.
Gun regulation, like religious expression, evokes protective decisions from the current Court, but the justices work from constitutional rights that are actually in the Constitution’s text, in contrast to the judicial inventions of constitutional law that characterized justices of past generations.
Gerstein’s comments unfortunately reflect the ideological slant and obliviousness to history that seem to characterize even the most honored journalists.