SCOTUS: Don’t Get Mad . . . (1)

Ideological? Of course

Photo by Tim Mossholder on Unsplash

Last June’s Supreme Court decisions were dramatic: guns, abortion, school prayer (and more) each gained or lost constitutional protection. I was unhappy with all of them; they filled me with anguish and alarm. But not with rage; at least, not at the Justices.

To be clear, my respect for each, as an individual and as a jurist, varies. I have great respect for John Roberts on both counts, even though I often disagree with his decisions. (If Ginsburg and Scalia could do it . . . ) My esteem for the others as persons and as jurists varies, but not directly as a result of the decisions they reached.  A major purpose of this column (and a couple that will follow) is to preserve – or create, or restore – a space for respectful disagreement.

Two of those decisions are having tragic outcomes: Bruen (gun rights) and Dobbs (abortion). The consequences of the latter are already far broader, and harsher, than perhaps anyone expected. However one feels about abortion, criminalizing it (as many states now have) is not the answer.

But outcomes are not the point, at least not the whole point. The Court does not decide whether a law is desirable or even whether it’s fair; instead it decides how the law relates to the Constitution. Is the law Constitutionally required, or allowed, or forbidden? A hard question about a document written long ago and phrased in abstractions: “Due process,” “cruel and unusual,” “unreasonable search and seizure,” and so on.

Applying its grand ideals to specific problems -- in a world unimaginable in 1788 -- is tricky.  Doing so requires interpretation.

Interpretation can take into account new knowledge. Take, for instance, the Eighth Amendment, prohibiting “cruel and unusual punishment.” The Court now interprets the phrase to forbid capital punishment for minors. The decision took into account what we now know about the adolescent brain.

In other cases, what the words meant when written is debatable. “The right of the people to keep and bear arms shall not be infringed” is clear (although “infringe” is vague).  But the words that precede it (“A well regulated militia being necessary . . . “) suggests the right belongs only to militias like the National Guard. (Until I wrote this column, I thought that conclusion was a no-brainer. But researching the amendment’s history gave me pause. See below.)

Sometimes the immense difference between our world and that of the Framers makes the question pointless. (Just what did James Madison think about video games?)

Furthermore, no constitutional right is absolute. Freedom of speech does not protect calling “Fire!” in a crowded theater. Freedom of religion does not allow parents to deny medical care for their children. Similarly, several constitutional rights can be in tension. The State may neither establish nor prohibit any religion, but there’s a lot of space between the two provisions. Does allowing school prayer count as establishing a religion? Does forbidding it count as prohibiting a religion? Neither, really. But prayer has to be either allowed or forbidden, so a decision has to be made

Precedent also matters, but it’s not absolute. A major purpose of law is to provide stability, a framework upon which people can plan their lives. But precedent is sometimes overridden, when the underlying issue is thought to be grave. Racial segregation of schools was upheld by one decision (Plessy, 1896) and overturned a half century later (Brown, 1954). 

These factors vary in their importance, according to the case at hand; so do the Justices’ conviction about which are more important. Although some call themselves textualists or originalists, these schools of thought are matters of emphasis. Everyone pays attention to the text, everyone pays attention to precedent. Justices disagree about when consequences matter, what they’re likely to be, and how to weigh conflicting Constitutional values. 

Summing up: I disagree with the final dramatic decisions this spring:  I think the cases were wrongly decided, that the stronger arguments were on the other side. Positions can be reasonable but mistaken. I am willing to assume – and I believe we should all assume – that the opinions were reached honestly, through the use of plausible principles and (even) respect for stare decisis.  We owe one another the presumption of good faith; we owe it particularly toward the Supreme Court.

Are the decisions ideological? If ideology means a set of principles which fall short of being absolutely compelling, then this Court, like all preceding Courts, is ideological. There’s no way around that. And ordinarily, the charge is leveled when the principles in question are not shared by the one complaining. But it’s not a useful charge.

Other accusations have been made: that the Court is partisan, that the decisions are simply expressions of personal preference. I’ll turn to those accusations in the next column, still arguing for a presumption of good faith. But in the third (and final!) column I’ll talk about what does deserve outrage: the forces that packed this Court. Mitch McConnell, to begin with, but more basically our political structures and culture. And not just McConnell, but his predecessors, enablers, acolytes, and look-alikes.

I want to maintain a space for respectful disagreement, a space without vitriol. But I also want to convert the raging anger out there into more useful energies. Stay tuned.

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For a thoughtful overview of the Second Amendment, see https://constitutioncenter.org/interactive-constitution/interpretation/amendment-ii/interps/99.)

My plea for tolerance does not extend to the Court’s decision a year ago, allowing a Texas vigilante-style anti-abortion law to stand. See this powerful attack:

John Roberts is wrong about questioning the court's legitimacy. John Roberts told us so.