“We must never forget that it is a constitution we are expounding,” cautioned John Marshall, one of the first Chief Justices of the U.S. Supreme Court. Marshall, speaking almost exactly two hundred years ago for the Court in McCulloch v. Maryland, had foresight. Forgetting what a constitution is, and what that implies for expounding it, is the central political problem of our day. Constitution Day, September 17th, the date on which the Framers of the Constitution signed the nation’s charter into law, is an opportunity to remember – and take warning.
Judicial independence is the crowning glory of the American constitutional system, and the Supreme Court’s singular commitment to the Constitution and laws of the Republic – with its concomitant determination to avoid political entanglements – is the brightest jewel in that crown. To those who questioned whether a federal court system was appropriate in a nation of limited central government, Alexander Hamilton famously defended the co-equal role of the federal judiciary in Federalist 78 by contending that the judicial branch would “always be the least dangerous to the political rights of the Constitution,” because it would be least capable of imposing its will on the other branches and the People.
Federal courts have no army at their command, no police force to enforce their decrees. The judiciary, Hamilton said, has “neither force nor will, but merely judgment.” The power of the Federal Marshal’s Office may cow an individual litigant into compliance with a court’s injunctive order, but the broader authority enjoyed by the Supreme Court and the federal courts of appeals can only depend on respect for the Rule of Law and the courts’ unique place in upholding that principle. The Rule of Law doesn’t just depend upon respect for the courts – it is respect for the courts. Federal judges – alone among federal officials – have lifetime tenure in their jobs to insulate themselves from pressures that would inevitably arise from the need to stand for election or to secure political appointment or re-appointment.
For this reason, the Supreme Court ought to be respected in its inurement from the political forces that – by constitutional design – perpetually crash like storm waves against the Congress and the president. Once the Justices begin to decide disputes with an eye toward the impact their decisions may have on the country’s often-heated heated political discourse, not only the trust reposed on the judicial system by litigants, but even more importantly the meaning of the law itself – of federal statutes and constitutional provisions – is subject to distortion for political ends.
That’s why a “friend of the Court” brief five U.S. Senators filed recently with the Supreme Court should unsettle anyone who values the Court’s constitutionally safeguarded independence. “The Supreme Court is not well. And the people know it,” Senator Sheldon Whitehouse of Rhode Island and his collaborators told the Court in a case involving the scope of the Second Amendment’s “right to bear arms.” “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’” The brief can’t be taken as anything but a crudely-veiled warning that if the Justices fail to reach the “right” result, the U.S. Senate would consider extreme political retribution — such as “packing the Court” with additional “right-thinking” jurists, as some threatened to do to protect President Franklin Roosevelt’s New Deal programs. Thankfully, fifty-three senators penned a powerful reply to the “Gang of Five,” reminding the Justices that “Judicial independence is not negotiable…. Our constitutional republic depends on an independent judiciary ruling impartially on the basis of what the law says.”
A ready handful of hot topics come up when the discussion turns to “political” questions the Supreme Court faces from time to time: electoral gerrymandering, the “right to bear arms,” Bush v. Gore, and the like. But abortion stands alone as the most potently corrosive force in modern constitutional jurisprudence. The demand for abortion distorts every doctrine of constitutional law it touches, from the Article III requirement for constitutional standing and the Fourteenth Amendment right of due process, to the First Amendment free speech rights of pro-life advocates and the free exercise rights of pro-life doctors, nurses and pharmacists. Beginning with Roe in 1973, the rush by activist judges to ignore medical science, history, and judicial precedent in order to erect a high wall against virtually every reasonable restriction on abortion has no parallel in American law, save for the country’s shameful denial of the humanity and dignity of persons for their racial heritage. Members of the Supreme Court have described judicial review in abortion cases as an “ad hoc nullification machine” for laws restricting abortion, and charged that abortion has worked “a major distortion in the Court’s constitutional jurisprudence.”
Clearly, Roe needs to go. But there is apparently at least a three-Justice bloc – Chief Justice John Roberts, Samuel Alito, and Brett Kavanaugh – that believes that “special justification,” more than mere constitutional error, is required to overturn precedent. Likewise, many have suggested that the Court would or should wait for more than a bare one-member majority to overturn Roe. But neither a “special justification” nor a felt need on the part of the Court’s conservatives to avoid a narrow and vociferous public split made any difference in 2010 in Citizens United v. FEC, in last year’s decision in Janus v. AFSCME (no forced subsidization of public sector unions), or this year in Franchise Tax Board v. Hyatt (states can’t be sued in courts of other states), all 5-4 decisions. Just a week after the Court issued Franchise Board Board, Justice Sotomayor and the four other liberal Justices, joined by Justice Neil Gorsuch, voted in Herrera v. Wyoming to overturn an over one-hundred-year-old precedent and uphold the validity of a Crow Indian treaty from 1868. The Justice’s debates over whether and when to overturn precedent have at times been confusing and amusing, as both conservatives and liberals have postured themselves as the defenders of precedent, and by extension, of the Rule of Law and even the Supreme Court itself. But throughout these debates, Roe’s vulnerability has been the subtext of the conflict.
Webster v. Reproductive Health Services in 1989 bruited this debate in the context of a Missouri abortion control statute. Justice Anthony Kennedy wrote to Chief Justice William Rehnquist shortly before the Court’s decision regarding Rehnquist’s draft opinion for the Court, and cc’d the Justices who would make up the Webster majority – Byron White, Sandra Day O’Connor and Antonin Scalia. Kennedy told Rehnquist:
I am in substantial agreement with your excellent opinion in this case. As you know, in my view the case does provide a fair opportunity to assess the continuing validity of Roe v. Wade, and I would have used the occasion to overrule that case and return this difficult issue to the political systems of the states. But overruling Roe is not a strict necessity here, so I anticipate being able to join an opinion for the Court as you have circulated it …
The Court’s plurality, with Chief Justice Rehnquist writing, upheld provisions of Missouri’s abortion statute, but expressly refused to overturn Roe, in a part of the decision in which Justices White and Kennedy joined. “This case therefore affords us no occasion to revisit the holding of Roe … and we leave it undisturbed,” the Court’s plurality said.
Justice Scalia was disappointed and direct, saying he would have overturned Roe, and charging the court with “contriv[ing] to avoid doing it.” Scalia demonstrated a thoughtful understanding of the question politics should (and should not) play in the Court, arguing that avoiding a constitutional question because of concerns external to the case like public response is, itself, “political” and injurious to the Court’s integrity and reputation:
The outcome of today’s case will doubtless be heralded as a triumph of judicial self-awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not juridical – a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.
Our retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of the role of this Court. We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us — their unelected and lifetenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will — to follow the popular will.
Three years later, another plurality in Planned Parenthood v. Casey voted to affirm Roe v. Wade, including Justice Anthony Kennedy, who changed his mind about overturning Roe shortly before the decision was issued and provided the deciding vote. The plurality relied on considerations external to the constitutional text, and explicitly the public’s perceived embrace of the right to abortion in the years since Roe. “For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society in reliance on the availability of abortion, in the event that contraception should fail,” the plurality reasoned. Once again, the plurality cited the fierce political debate over abortion as a reason to maintain the rule of Roe, in the hope that by doing so, that debate would subside. “Whether or not a new social consensus is developing on [abortion], its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.” So for the Casey plurality, adherence to the Rule of Law mandated acquiescing to public demand for abortion – a perverse distortion of the meaning of the principle.
The only safe channel between the Scylla of public opposition to a Supreme Court decision and the Charybdis of public support for it is to hew only to the principle of federal judicial review on which the Constitution and the federal judiciary is founded. The only way for the Court to avoid looking political is not to be political; the text and history of the Constitution should be the only basis for the Court’s interpretation of the nation’s charter. Or as Chief Justice John Marshall put it in another case, Marbury v. Madison,[15] it is the Court’s duty finally – and merely – to “say what the law is.”