Hari-Kari on First Street

Posted in: Reproductive Law

Dobbs is the gravest self-inflicted wound in the Supreme Court’s history.

It does not qualify for this distinction merely by coming to a wrong decision on a deeply consequential issue, nor yet by unleashing a smokescreen of prose that envelops numerous basic liberties in deep gloom. Those are indeed deeply serious concerns. But the Court has been grievously wrong before, and its prose is frequently Delphic. The asymptotic processes of judicial decision-making are supposed to correct such deviations.

Dobbs, though, repudiates those very processes.

As they review fifty years of jurisprudence and say, “never mind,” five Justices in the majority forcefully denigrate their predecessors for doing exactly what unelected judges are supposed to do: use judicial tools to craft protections of individual rights against overreach by the political branches.

This is a reckless assault on the very institution of judicial review. In subverting the hard-fought legitimacy of that institution, the Court weakens its own power. More critically, it endangers us all.

Over the long term, everyone will be the worse off for a ruling that undermines the basis on which our political system has over time come to accept the Court’s authority to check the legislative and executive branches.

Today, we do not find it remarkable that when the Court issued rulings requiring President Harry Truman to return the steel mills he had seized to fight the Korean War, President Richard Nixon to turn over the Watergate tapes he had withheld from a grand jury, and President Donald Trump to remove from the census forms a question he had sought to include to intimidate undocumented aliens, all those administrations complied.

But in the early days of the Republic, the idea that the unelected judges should have the power to invalidate the actions of the other branches as unconstitutional was widely considered to be inconsistent with government by the people.

The Supreme Court was well aware of how precarious its position was. When the Jefferson administration took office, it legislatively removed sixteen judges from the lower federal courts who had been put in office by the outgoing Adams administration. The Supreme Court upheld the action.

When in the now-celebrated case of Marbury v. Madison the Court announced its right to declare statutes unconstitutional, it did not actually issue any order to Secretary of State James Madison because it knew full well that such an order would have been ignored.

But just in case the Court might have missed the point, Congress the following year impeached (although it did not ultimately convict) Justice Samuel Chase because it objected to his judicial opinions.

And when the Court a few years later actually went so far as to issue a writ of habeas corpus for the benefit of prisoners arrested in connection with Aaron Burr’s treason conspiracy, it took pains to explain that its power was wholly derived from Congress rather than being inherent in the judicial role of controlling the executive.

Carefully, year by year, the judiciary overcame this unpromising start and explained to a skeptical electorate the legitimacy of its role as a check on the other branches.

Because judges, like other officeholders, were bound by the Constitution, judicial review was an implementation of the will of The People from whom the Constitution originated. By issuing reasoned public opinions in individual cases, explicating the law as it slowly evolved to accord with social values, the courts would serve a valuable role in checking short-term legislative excesses that might threaten civil liberties.

By the second generation after the Founding, these views had become a solid part of the Constitutional structure. That is how the Supreme Court was able to survive what until this week had been perhaps its most misguided decision, the notorious Dred Scott case.

There, for only the second time since Marbury, the Supreme Court declared a federal statute unconstitutional.  But this time its decision had consequences. In an opinion that both relied on transparently erroneous history (as the dissent pointed out), and flouted procedural norms, the Court invalidated an attempt at compromising the slavery issue. Indeed, its language systematically foreclosed a series of other potential compromises. The result was to accelerate the country’s progress toward civil war.

Still, when the Constitution was fundamentally amended after the Civil War—including by a provision flatly overruling Dred Scott—there was no attempt to abolish judicial review.

The tempering value of that device was now fully understood. Of course politics would continue to influence the selection of Supreme Court Justices. That had been true since the beginning, and was indeed built into the selection process. It was a feature, not a bug. It meant that over time, The People would get the Constitution they wanted.

But meanwhile, the Supreme Court, operating by legal norms and on a timeline independent of elections, would move judiciously in response to arguments pressed upon it by litigants.

Thus, when the Court in Brown v. Board of Education rendered an intensely unpopular decision, it was one that built upon a whole series of incremental cases—often brought strategically by civil rights groups—that had been decided in the 1920s and 1930s. The Brown Court wrote a careful unanimous opinion, which overruled prior precedent only to the extent strictly needed.

The Court did this because it knew that a storm of outrage was about to break out on the political front. And, regardless of what the country was going to ultimately decide to do about segregation, the Court wanted to ensure its own long-term legitimacy as it faced similarly divisive controversies, and the potential need to reverse its own precedents, well into the future.

Chief Justice John Roberts has long been mindful of this history. Increasingly—beginning with a scandalously injudicious rush to accelerate federal executions in the second half of 2020 and through a series of radical up-endings of the meaning of the religion clauses thereafter—the Court as a whole has not. Concerns of judicial methodology have been ignored in favor of reaching a particular outcome.

Dobbs turns that indifference into hostility. To work through the applications of rules (like “no undue burden”) to facts is far too much work, and shows that the field should be free of judicial control. This is judicial hari-kari. A unique ability to engage in case-by-case analysis is the foundation of the Court’s institutional independence.

Even if, shortsightedly, the Court does not worry about retaining that independence, the rest of us should.  By definition, it is the outs rather than the ins who need the Court’s protection against political majorities.

As Alexander Hamilton explained in Federalist 48, the “independence of the judges is … requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which … sometimes disseminate among the people …, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion …. serious oppressions of the minor party in the community.” Moreover, he continued, knowing that unconstitutional laws would be overturned would inhibit legislatures from passing them in the first place.

Hence, “Considerate men, of every description, ought to prize whatever will tend to beget or fortify [the independence of] the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day.”

In time, the political system as a whole came to agree with Hamilton. Judges gained the power of judicial review because their unique methodology of accreted wisdom had a special role to play in curbing the excesses of political passions. Complementing the work of the political branches, the work of the judicial branch strengthened the framework of our Republic. A number of Supreme Court opinions helped bring the polity to this understanding, and no Supreme Court opinion ever questioned it. Until Dobbs.

That is why Dobbs has instantly shot to a top position in the very competitive rankings chart for Worst Supreme Court Opinion. Ever.

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