Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. –Alexander Hamilton, Federalist 78
It’s my oldest memory. I am three, standing harnessed between my parents, in a brand-new two-seater 1959 Jaguar convertible roadster. We are on an empty gravel road someplace in Virginia and my Dad decides to let his new baby fly. I can see In front of me the windshield and, below, a gray leather dashboard that has two things of great interest…a speedometer and a tachometer. The motor hmmmmmms as he takes the car through the forward gears, the tachometer first rising and then falling, the speed increasing. The big whitewall tires are crunching the rough road; cinders are flying; we hit 60 MPH, then 70, then 80; and I’m clapping my hands and piping out “Faster, Daddy! Faster!” My mom goes from worried to furious “Slow down, Ernie, slow down!” As he passes 90, I look down for a moment and she’s slapping her yellow shorts. I peek at the rearview mirror and see a huge cloud of dust. 95, 100, and finally 105. Then without warning, and without using the brakes, he starts to slow, gradually downshifting; the speedometer and tachometer fall; and that’s where my memory ends.
I have been thinking about writing a Supreme Court piece since the conservative bloc’s muscle-flexing on Texas’s SB-8 abortion law, and, each time I do, the memory of that beautiful sportscar flying down the road keeps gnawing at me. The thrill of it, the uncertainty, the obvious danger. My Dad’s going through whatever decision-making process he did to start, continue, and end.
We’ve got a new Sheriff in town, a new driver for that beautiful car. Justices Thomas, Alito, Kavanaugh, Gorsuch and Barrett are taking the wheel and the throttle. Just where is their ultra-conservative vision taking us, and at what cost?
Ian Millhiser had a really interesting piece in Vox a couple of weeks ago. In response to a speech by Justice Barrett at Notre Dame Law School, he pointed out the dichotomist (and convenient) status she claimed for herself. Judges, she said, fell into two categories, “Pragmatists” and “Formalists.” Pragmatists went beyond the narrow limits of what Judges should do to arrive at what they saw as more equitable solutions. Pragmatists were sloppy, results-oriented, and failed to show intellectual rigor.
Formalists (like her) adhered closely to the original text, to history and tradition, and acted discreetly, without descending into Judicial Activism. Formalists embraced modesty, Judicial Restraint, Original Intent. Formalists were the true heirs of the Framers.
Let’s examine that for a moment. To my way of thinking, “Original Intent” has more than a little bit of alchemy to it. Certainly, I agree when the language of the Constitution is clear, that’s the law of the land. You change that only through the Amendment process. This is the “original deal” we all agreed to, and it should not be subject to the whims of any transitory majority.
Beyond that, though, Original Intent exists wherever a conservative Justice says it does, after careful consultation with their James Madison Edition Ouija Board. Amazingly enough, Madison’s disembodied spirit always agrees with the side that the “Originalist” wishes to favor. This is nonsense. As farsighted as the authors of the Constitution were, they couldn’t possibly have had a frame of reference for many of the issues we face today. They knew they were just driving in the piles and adding the girders—The rest of government would have to be filled in by their successors. In part, this is why they added Article I, Section 8, which gives Congress power “[t]o make all Laws which shall be necessary and proper for carrying into Execution.”
As to Judicial Restraint and its buddy Stare Decisis, admirable as the concept may be, it is something that, in practice, on controversial issues, primarily exists for Senators on the Judiciary Committee to ask prospective Justices about at their confirmation hearings. “Judge Hornswoggle, my constituents are very concerned about an issue that I cannot ask directly about and really don’t want the answer to, so can you say “Judicial Restraint” three times with your fingers crossed behind your back.” Of course, potential nominees would never consider misleading Senators as to where they stand, and are deeply respectful of past precedent.
So, does Barrett and the rest of the Gang of Five believe in any construct other than their own ideological and political preferences? Millhiser clearly doesn’t think so. They are “flexible” whenever they happen to be considering anything they don’t personally agree with. That happens to encompass a considerable amount of President Biden’s agenda, including vaccines and other public health measures, his Green agenda, and his right to set his own policy on immigration. That’s only the start of it. Add voting rights, the role of religion in public life, guns, gays, and of course, abortion. On each and every one of them, these folks have either already acted or are poised to act in a way that would make genuine Formalists cringe.
We can begin with the 2021 5-4 decision in Whole Woman’s Health v. Jackson, which Barrett joined in full. We are all familiar with the Texas ban on abortion after six weeks, and the unusual way (through bounty hunting) the authors of the statute created to avoid judicial scrutiny. That is the headline, but it’s the process that allowed SB-8 to stand, and that Texas “Secret Sauce” that ought to be as much the story.
Before I go any further, I should point out the obvious. Roe v. Wade still stands, as does the fetal viability standard set in a subsequent 1992 case, Planned Parenthood v. Casey. They stand, but, after Whole Woman’s Health, any State where a majority of the Legislature and Governor don’t agree with those precedents can feel free to ignore them, using the Texas model. When is a constitutional right not a right? You are looking at one right now.
I’m not, in this essay, arguing here for the continuation of Roe or Casey. nor do I have any expectation whatsoever that a hard-right SCOTUS will do anything short of a headshot to both precedents when the Court rules later this year in Dobbs v. Jackson Women’s Health Organization, the Mississippi 15-week abortion ban.
I said above that my objection is to process, and, in the law, process matters a lot. Process, how you arrive at your desired conclusion, the consistency of the reasoning you apply, the precedents you observe, and the degree of authority you assume, are critical. In Whole Woman’s Health, the route the conservative bloc took tossed established process aside to achieve a desired result. Not only did they refuse to enjoin what is clearly a violation of existing law before ruling on it, but they blessed an end-run that essentially strips federal courts of their 200+ year primacy in determining what is a constitutional right.
We have had cynical and even intensely partisan rulings from SCOTUS before. But few have been as profoundly corrosive, as intellectually corrupt, or as damaging to the reputation of the Court as this one is.
Justice Roberts knows it—it’s why this long-term opponent of abortion rights joined the minority on this, so seemingly shocked was he by the blatant disregard for proper order. Quoting from an 1809 Opinion by Justice Marshall in United States v. Peters, “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.”
Why would I get so riled up at this, and why should you, regardless of where you stand on the abortion issue? To start with, the bounty-hunter approach can be used in as many venues as have one-party governments with an itch to scratch about a particular constitutional right. Your rights, the ones you personally value but might not carry the approval of a majority of your State, can also come under assault.
A lot of conservatives acknowledge the theoretical danger of a Blue State doing this with guns or environmental issues, but are muted in expressing their concerns. Their reticence may be viewed as an even more damning evaluation of this Supreme Court. Many perceive the risk as theoretical only, since they expect SCOTUS to rush in to protect the rights that they and their fellow conservatives value, even while they leave other disfavored rights out on the ice to die. Here’s the problem with even that: Why should any American have to see their constitutional rights suspended, no matter how unpopular in their community? Constitutional rights shouldn’t be something you routinely have to litigate to vindicate. Despite Justice Barrett’s insistence that she’s a Formalist, there’s not an atom of Formalism to this approach.
On the other hand, there is a hurricane-force “Pragmatism” that doesn’t just show on deeply divisive issue like abortion. The emboldened conservative wing has far greater ambitions, and is expressing power where it can. This has been particularly true in the area of Biden Presidency policy-making. There, the Court has inserted its own judgments for that of Executive Branch, claiming the legislative framework that created individual agencies (through which the Executive works) lack the specific power to impose regulations with which SCOTUS does not agree. In this, they are, again, ignoring the existing precedent of affording Chevron deference to administrative action because they do not agree with the policy.
It is reasonable to say the five are thirsty for the opportunity to put their own mark on American history, to right whatever they see as historic wrongs on programs and policy making. Take a deep breath; here are a few other cases to keep your eye on over the next several months:
303 Creative LLC v. Elenis is similar to the old “I won’t bake a cake for a gay couple” case we had several years ago. Under Colorado law, it’s illegal for a business to discriminate against LGBTQ customers. The plaintiff here claims it violates her religious beliefs to require her to serve gay customers. Conservatives have been increasingly insistent that those who profess religious reasons can occupy a space free from many regulations the rest of us must observe. This decision could formalize more carve-outs to civil rights legislation.
Students for Fair Admissions Inc. v. President & Fellows of Harvard College: Yet another lawsuit against affirmative action, in this case brought on behalf of Asian students who believe their admits are depressed because of Harvard’s outreach to other minorities. The Plaintiff here, Students for Fair Admissions Inc., is an organization dedicated to ending affirmative action wherever it can find it, and to providing logistical support and funding for litigation against targeted schools. It’s a fairly good bet that the new conservative supermajority will be sympathetic here, while ignoring every other type of admission preference.
Biden v. Texas is a fascinating case where a “Trump Judge” in Texas insisted that President Biden did not have the power to change former President Trump’s “Remain in Mexico” immigration policy. I’d watch this one closely. The idea that a President has no right to alter a predecessor’s policy or policies is something that should be treated as a hand grenade by SCOTUS. The logical, practical ruling would be to side with President Biden, even if the conservatives on the Court prefer Trump’s approach. To do otherwise could demand that SCOTUS determine the validity of any policy changes after a Presidential transition. As even this Court doesn’t want to show that much blatant favoritism, I think Biden will get the right to make his own decisions, but it’s not a certainty. Look for a tortured opinion built on Rube Goldberg logic if it breaks against him.
New York State Rifle & Pistol Association v. Bruen: Potentially a blockbuster on gun rights, this case challenges New York’s 108-year-old (not a typo) gun-control law that puts limits on concealed carry. Oral arguments last November seemed to presage a more limited ruling, preserving a State’s right to some limited areas in which it could restrict guns, but the ambitious agenda of the five most conservative Justices, plus their expressed affinity for firearms, makes this one a wild card.
Let me make one final point. No matter how much we tell ourselves that we live in a free country, our government has grown immensely powerful. It flies down the road at potentially unsafe speeds, relying on humans to make key decisions that have real-world impacts. Not all of those humans are reasonable, not all impartial, not all possess a greater emotional maturity than a three-year old urging his Daddy to go faster. But even so, elected officials get to make those choices, and, so long as they are lawful, judgment on their judgments belongs to the people, not to the courts. What the courts owe us is consistency, fairness, and impartiality.
I happen to have Hamilton on speed dial, and on this we agree:
Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in 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. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
Your Rights In The Rearview Mirror first appeared on 3quarksdaily.com on Monday, February 28, 2022
You can find my other posts for 3Q at https://3quarksdaily.com/3quarksdaily/author/michaelliss
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Michael Liss
