What Does it Mean for Other Institutions to “Defy” or “Check” the Supreme Court? Not What the Court Invites Those Institutions to Do

Posted in: Constitutional Law

Near the end of its most recent term, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, and held that nothing in the U.S. Constitution confers a right to obtain an abortion. As long-time constitutional law scholars committed to making the Constitution and Court decisions under it understandable to the public, we have paid nearly as much attention to media coverage of Dobbs as we have to the ruling itself. Unfortunately, even in venerable and mainstream news outlets, many reports about and analyses of Dobbs—and, indeed, of the Court’s 2021-22 term more generally—have been less accurate and less reliable than we would want and should expect. A recent column in the New York Times entitled “Defying the Supreme Court,” by noted and Pulitzer-prize winning journalist David Leonhardt, exemplifies the problem. Leonhardt’s column focuses on two recent political developments: passage in the House of Representatives of the federal Respect for Marriage Act (a proposal that would repeal the 1996 Defense of Marriage Act, which defined marriage for federal purposes as a union of one man and one woman, and require each state to recognize, under the Constitution’s Full Faith and Credit Clause, same-sex marriages performed in other states); and defeat by Kansas voters of a proposed state constitutional amendment that would have specified that the constitution does not protect a right of abortion. Leonhardt presents these two instances as examples of “defying” and “confront[ing]” the Court; of “checking” judicial power; and of “undo[ing]” the Court’s rulings. He writes:

The Supreme Court has lately looked like the most powerful part of the federal government, with the final word on abortion, gun laws, climate policy, voting rights and more.

But the founders did not intend for the court to have such a dominant role. They viewed the judiciary as merely one branch of government. They gave Congress and the president, as well as state governments, various ways to check the court’s power and even undo the effects of rulings.

Two big examples have emerged this summer, following the court’s decision to overturn Roe v. Wade. In Kansas, residents voted overwhelmingly this week to keep abortion rights as part of the state’s constitution. And in Congress, advocates for same-sex marriage are trying to pass a bill to protect it, worried that the court may soon restrict marriage rights as well.

These developments offer a reminder about the limits of the Supreme Court’s power: Political progressives and moderates who are alarmed about the current court — the combination of its aggressiveness and the relative youth of its conservative members—have many options for confronting it.

We think Leonhardt misreads Dobbs, and that in his characterization of the congressional marriage bill and of the Kansas amendment vote that he misconstrues the relationship between ordinary politics and the decisions of the Supreme Court.

Let’s start with Dobbs and the vote in Kansas. We offer no view here on whether Dobbs was correct or not in overturning precedent and repudiating a right to abortion (although we both do think that the Dobbs majority opinion fell short in its analysis of arguments grounded in equal protection for retaining the right recognized in Roe and Casey). But we do offer a view on whether Kansas voters “defied” or “confronted” the Supreme Court (or “checked” the Court’s power) by declining to write into their state constitution a ban on abortion. Kansas voters did no such thing.

In holding that the federal Constitution does not itself protect a right to abortion, Dobbs expressly leaves it to states (and, possibly, Congress and the federal executive) to decide whether and how to regulate access to abortion. Justice Samuel Alito’s majority opinion ends: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” And importantly, as Justice Brett Kavanaugh’s important concurring opinion makes clear, Dobbs does not stand for the proposition that Kansas and other states are somehow required to prohibit or even regulate abortion:

On the question of abortion, the Constitution is . . . neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.

A state that now decides whether and how to regulate abortion—by protecting or limiting access—is thus pursuing the very invitation that Dobbs extended.

The federal Respect for Marriage legislation similarly does not involve defying or confronting the Dobbs decision, for two reasons. First, as noted above, Dobbs does not purport to limit Congress’s exercise of its own valid powers. Second, and more fundamentally, Dobbs is about a federal constitutional right of abortion. Although the three-Justice dissent raises concerns about implications for contraception (in Griswold v. Connecticut) and for same-sex intimacy (in Lawrence v. Texas) and marriage (in Obergefell v. Hodges), the majority, emphasizing the unique issue of the status of a fetus, deems those concerns “unfounded.” And again, Justice Kavanaugh (whose vote here makes him the fulcrum of the Court) in his concurrence is plain: “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” While no case is ever set in stone, that language strikes us as a significant constraint. True, Justice Clarence Thomas’s separate opinion in Dobbs criticized (as he often had before) the very notion of substantive due process and said that “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” But that’s not much reason to think other rights will soon fall. Importantly, no other Justice joined Thomas’s concurrence. (And whereas Kavanaugh represents the Court’s pivot point, Thomas represents its extreme.) Moreover, even Thomas himself added that “the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” As to same-sex marriage, it bears remembering that Obergefell was deeply grounded in equal protection, a principle written into the Constitution’s text rather than an unenumerated right. Whatever other members of the Dobbs majority might be inclined to do, we are skeptical that any path leads to Justice Anthony Kennedy’s former law clerks, especially Justice Kavanaugh, undoing this equal protection ruling in Obergefell. And (again) even if the Court tomorrow were to overturn Obergefell, enactment of statutory protections for same-sex marriage would not represent defiance of the judiciary. The main argument of the dissenters in Obergefell was similar to that which carried the day in Dobbs—that the Constitution is silent on issues of same-sex marriage and the question should be left to the political process.  Another way of putting this important point is that statutory rights, even when they cover the same ground that might be occupied by constitutional rights, are distinct from constitutional rights themselves.

None of this is to say there has never been defiance of the Court’s rulings. While neither the abortion vote in Kansas nor the pending federal marriage-equality proposal qualify, some political reactions to Supreme Court rulings in the past arguably have involved defiance or disobedience of the Court. One example may be the federal Flag Protection Act of 1989 enacted and enforced in response to the Supreme Court’s ruling earlier that year, in Texas v. Johnson, that burning a flag is protected expression under the First Amendment. The federal law was clearly (indeed obviously) unconstitutional under Johnson, and the Supreme Court so held in 1990 in United States v. Eichman. It’s hard to imagine Congress passed the law for any reason other than thumbing its nose at the Court.

A second example might be the decision of the U.S. Court of Appeals for the Fifth Circuit in June Medical v. Russo, upholding a Louisiana law requiring that abortion providers have admitting privileges at a nearby hospital—shortly after the Supreme Court had invalidated a very similar Texas requirement, in Whole Women’s Health v. Hellerstedt. Although the Fifth Circuit tried to point to some factual differences it perceived between the operation of the Texas and Louisiana laws, the Supreme Court—correctly, we think—viewed the lower court as having failed to follow on-point precedent, something lower federal courts are supposed to do even if there is good reason to believe the U.S. Supreme Court itself might be on the verge of overruling its own past decisions.

Harder questions might be raised by laws like Texas’s infamous SB8 law (which prohibits abortion after detection of fetal cardiac activity and allows private persons to sue other private persons who facilitate early-term abortions). On the one hand, legislative actions like SB8 (and other state enactments of regulations that were clearly unconstitutional under the extant U.S. Supreme Court cases) “defy” the Supreme Court by regulating conduct in ways the Court, at least at the time the law is enacted, has said cannot be regulated. But on the other hand, such actions by legislatures provide opportunities for the Court to reconsider its past rulings; if no state ever tried to push the envelope even when there is reason (as there was not, for example, in the flag-burning context) to think the Court might be ready to change course, cases the Court might want to be able to overrule could persist forever. For example, if states and Congress did not continue to enact (and from time to time try to enforce when there was a reasonable basis for believing the Court’s thinking had changed) workplace wage and safety laws in the first half of the twentieth century, seemingly in defiance of the Court’s articulation of a substantive due process “liberty of contract” in the (now in-)famous Lochner case, the Court would not have easily been able to repudiate the Lochner doctrine, which it rightly did beginning in the 1930s.

Indeed, the Mississippi law upheld in Dobbs was clearly inconsistent with the constitutional limits the Court had laid out in Casey, and yet the Court (with six members, including Chief Justice John Roberts) concluded that the law passed constitutional muster. It would be odd, we think, to say that Mississippi had defied or flouted the Court in passing a law the Court ultimately held was constitutionally permissible. (In this regard, it is interesting and important to note that legislatures, unlike lower federal courts, are not necessarily supposed to apply existing Supreme Court precedent when it appears reasonably likely that the Court may be on the verge of overruling past cases.)

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