Last time I argued that this Supreme Court, like all before them, is ideological, and that that’s not (in itself) a problem. So what’s really wrong? Lots of accusations are made, some a bit wildly, others thoughtfully.
Is the Court partisan?
Not exactly. Not in the way, for instance, that members of the Cabinet are. Their job is to carry out the president’s agenda. They might argue in private, but in public they’re team players. Otherwise, they lose their jobs.
Nor are the Justices like political strategists, whose job is simply to help the party win. No Republican strategist would have approved the Dobbs decision; it was obvious from the outset that it would hurt the party. Strategists would have urged a more limited decision. (As John Roberts did. But he wanted to protect the reputation of the Court, not to strengthen the party.)
The influence of party on the Court is more indirect. The nominees were chosen because the party liked their principles – that’s true of all nine Justices. But their decisions should, and generally do, arise from those principles, not from party loyalty. Again, we owe the Justices the benefit of the doubt. (Partly for their sake but more for ours, and for the country’s. More on that later.)
Are the decisions outcome driven?
This is always a possibility. In any case that reaches the high Court, there will be serious arguments on both sides. Weighing them is not a mathematical process. The reasoning is analogical: How is a case like, or unlike, previous ones? The Court can also look for meta-principles, for a more general basis underlying particular laws. That’s what was at stake in Dobbs. The history goes back a few years before Roe.
In 1965 the Court struck down a law forbidding the sale or use of contraceptives (specifically for married couples. Really!) Obviously, the Constitution does not mention birth control. But the 7-2 decision argued that a general right to privacy was implicit in the Bill of Rights; that freedom of speech, religion, and so on, implied a more general zone of personal liberty beyond the reach of the State.
Maybe the desired outcome – legalizing contraception – drove the argument. Almost everyone today would endorse the outcome. But there is disagreement about the tool that was forged to defend it – an implicit right to privacy – which was used in several following cases, including Roe.
Dobbs rejects that reading of the Bill of Rights. Whether the Constitution should be interpreted narrowly, or as an expression of broader ideals, is fiercely debated. This is a legitimate difference in ideology, and probably in itself driven by desired outcomes.
So yes, desired outcomes affect the decisions of this (and all) Courts. The influence can be obvious or subtle; judges may not recognize it in their own decisions. We who object to a decision may be blind ourselves, opposing an outcome so strongly that we can’t engage with the reasoning.
So what’s really wrong?
First, the Court is now controlled by six Justices far to the right of the general public. Yes, the Court is meant to resist popular opinion, to protect ideals against a mobilized crowd. But when the distance is too great, respect for the Court weakens.
Secondly, those six are increasingly willing to overturn precedent. Stare decisis (“let the decision stand”) is a bedrock of judicial reasoning. Precedent provides continuity, stability, predictability. With settled law, persons with similar cases are treated similarly. Precedent also protects judges themselves from political criticism. Stare decisis is not an absolute, but it is a fundamental value. This Court is increasingly willing to violate it. Dobbs is only the most recent instance. And by the way, this is one charge that can rightly be leveled against individual Justices.
Finally, this Court was constituted by strongarm tactics, nakedly partisan. Mitch McConnell refused to allow the Senate even to consider Obama’s nominee. (“It’s an election year.”) Four years later, much closer to the end of another election year, McConnell rushed through the confirmation of Trump’s appointee. The result is a supermajority with no need to get agreement from their colleagues.
It’s no surprise that this Court is widely seen as the enforcement arm of the Republican party. Would a Court of the future, ideologically different, simply reverse the recent decisions? That would make the judicial branch of government an offshoot of electoral politics, rather than a counterweight to it.
The Court is losing its legitimacy in the public eye. The country is badly damaged by this loss. Can the damage be undone? I don’t know.
But let’s try.
Next: What can be done?
Afterthoughts:
— The right to be left alone — “privacy” -- is a very American ideal. But our political poles invoke it differently. The right is slow to apply it to matters of sex and reproduction; the left doesn’t extend it to economic decisions. I side with the left, but that’s a complicated issue for another day.
— The Michigan Supreme Court can be blatantly partisan, because our Justices must run for election. Their campaigns are funded by the parties – who can and do withdraw support.
Links:
Contraception and the right to privacy (Griswold 1965) https://en.wikipedia.org/wiki/Griswold_v._Connecticut#Background
Privacy after Griswold https://hls.harvard.edu/today/50-years-privacy-since-griswold/
Partisanship and federal judges https://www.npr.org/2022/09/11/1122250610/are-federal-judges-more-likely-to-side-with-presidents-who-appoint-them
The role of precedent (stare decisis) https://legaljobs.io/blog/stare-decisis/ https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-including-striking-down-legal-segregation-and-reversing-roe-185941
This Court and precedent https://abcnews.go.com/Politics/roe-ruling-stare-decisis-dead-supreme-court-view/story?id=84997047
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