Liberal justices forfeited the ‘legitimacy’ they crave
12/4/2021
Wasthington Examiner
To listen to the liberal justices, one would think the Supreme Court’s job is not to uphold the Constitution but to maintain “public support.”
Their boasted concern for the court’s reputation should be largely irrelevant in decision-making other than in presuming they will be supported widely if they act in good faith interpreting the law. Filtering constitutional jurisprudence through public relations concerns is improper. It undermines the very Constitution the justices are sworn to uphold.
Yet, repeatedly during oral arguments in the Dobbs v. Jackson Women’s Health case on Mississippi’s new law restricting abortions, liberal justices harped on how overruling the “super case … the rare case, the watershed cases” of Roe v. Wade and Planned Parenthood v. Casey could be “what kills us as an American institution.”
All three phrases quoted above first came from remarks and questions from Justice Stephen Breyer. Justice Sonia Sotomayor wondered whether the Supreme Court will “survive the stench that this creates in the public perception” that the court has been politicized. Justice Elena Kagan worried about what people would be “thinking” about the high court.
These concerns amount to a misapplication of Chief Justice John Roberts’s stated preference for bolstering the Supreme Court’s “credibility and legitimacy” by favoring narrower legal decisions that can secure near-unanimity rather than more sweeping rulings that split it 5-4 along ideological lines. Even that preference of Roberts is problematic, for it can leave key constitutional questions unanswered longer than necessary. At least, though, Roberts’s predilection for delaying big constitutional concerns does not extend to making “credibility” superior to the Constitution’s text.
Because seeking “narrower” decisions also often means ruling on statutory grounds rather than constitutional ones, Roberts’s conception at least has the virtue of having the court defer to elected branches of government rather than seize a power to pronounce broad edicts on policy issues.
Yet in the Dobbs oral arguments, liberal justices sought to subvert the constitutional text just as they did in Casey three decades ago. Casey excused itself by explaining that it reaffirmed Roe’s pro-abortion ruling in part because reversing it would “weaken the Court’s capacity to exercise the judicial power.”
“The Court’s power lies, rather, in its legitimacy,” Casey reads, “a product of substance and perception that shows itself in the people’s acceptance of the judiciary as fit to determine what the nation’s law means and to declare what it demands.”
This assertion puts things inside out. First, the court’s job is not to protect its own power and “legitimacy,” but to get the Constitution and statutes right. Second, to the extent that its legitimacy is at issue, it is undermined, not enhanced, by worrying about the public’s “perception” rather than about the Constitution’s text.
Finally, concern about the court’s “power” is also backward. Our Constitution makes the people, not the Supreme Court, the arbiters of social policy. Yet Justice Breyer told the Dobbs case lawyers that “the country, for better or for worse, decided to resolve their differences by this Court laying down a constitutional principle, in this case, women’s choice.”
The country did no such thing. In Roe and Casey, the court decided to seize the power to “resolve … differences” that properly belongs to the elected branches. It didn’t just “lay down” a constitutional principle; it invented one. Rather than protecting republican processes, it short-circuited them. In so doing, it has catalyzed 49 years of vicious political battles about the court itself while forestalling chances for democratic compromises.
Nothing in the Constitution mentions abortion or anything close to it. Justice Brett Kavanaugh was right to say during oral arguments that the Constitution is, “therefore, neutral on the question of abortion,” and thus “leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.”
Justices who declare laws restricting abortion to be unconstitutional are thus themselves acting in anti-constitutional ways. Their approach is deeply and tragically wrong.