I’ve thought for a long time that the Supreme Court is far too supreme. The “living constitution” doctrine of the left has been used not just to update and apply constitutional principles to modern times but to lay down law that should instead have been addressed by either legislation or an amendment. The Court has become a shortcut to get the result the left desires but which the nation’s citizens do not support in sufficient numbers to enact such laws in any other manner at the time.
I don’t know when this began, but I know that Roe is an example of it. Prior to that famous SCOTUS decision, many states had already allowed and regulated legal abortion:
Prior to Roe v. Wade, 30 states prohibited abortion without exception, 16 states banned abortion except in certain special circumstances (e.g., rape, incest, health threat to mother), 3 states allowed residents to obtain abortions, and New York allowed abortions generally.
My sense is that over time this trend would have continued. Another way to legalize abortion in the entire United States would have been a constitutional amendment, but I’m less sure that would have gotten enough support to pass in enough states. At any rate, what actually happened was that SCOTUS used a supposed right of “privacy” to prohibit the banning of abortion, under the Due Process Clause of the Fourteenth Amendment. You can agree or disagree with the result (and that’s the understatement of the year), but the method and reasoning SCOTUS used to arrive at it has been widely criticized on the right and even by some on the left:
Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One argument is that Justice Blackmun reached the correct result but went about it the wrong way. Another is that the end achieved by Roe does not justify its means of judicial fiat.
Justice John Paul Stevens, while agreeing with the decision, has suggested that it should have been more narrowly focused on the issue of privacy. According to Stevens, if the decision had avoided the trimester framework and simply stated that the right to privacy included a right to choose abortion, “it might have been much more acceptable” from a legal standpoint. Justice Ruth Bader Ginsburg had, before joining the Court, criticized the decision for ending a nascent movement to liberalize abortion law through legislation. Ginsburg has also faulted the Court’s approach for being “about a doctor’s freedom to practice his profession as he thinks best…. It wasn’t woman-centered. It was physician-centered.” Watergate prosecutor Archibald Cox wrote: “[Roe’s] failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution.”
In a highly cited Yale Law Journal article published in the months after the decision, the American legal scholar John Hart Ely strongly criticized Roe as a decision that was disconnected from American constitutional law.
“What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. … The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court’s business. … [Roe] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Roe was a bad legal decision with a result that has caused fierce battles ever since, and some of those battles have involved SCOTUS candidates. The incredibly bitter battle over the nomination of Judge Bork involved many accusations by the left, but one of the main points of contention was the fear that he would somehow manage to overrule Roe, a case that is shaky in the legal sense but was already firmly ensconced in modern society. The abortion question is still behind some of the bitterness in present-day battles over SCOTUS, including the one we’re engaged in now – although of course it is hardly the only such issue.
The fear on the right – a very reasonable one, I believe – is that if the left ever gets a majority again the Court will impose a leftist agenda on the entire country. The fear on the left is that the right will be able to halt that agenda, at least temporarily.
What is there to be done? The left has an answer if the right starts to predominate: pack the Court. Of course. The right’s answer is not at all clear, except that so far it has involved trying to get a Republican president and a Senate where there is a majority of Republicans and not enough RINOs to throw a monkey wrench into the proceedings, and wait for the opportunity to make an appointment.
Glenn Reynolds of Instapundit has an idea:
When Congress decides an issue by passing a law, democratic politics can change that decision by electing a new Congress. When the Court decides an issue by making a constitutional ruling, there’s no real democratic remedy…
…All the hysteria about a Ginsburg replacement stems from the fact that our political system is dominated by an allegedly nonpolitical Court that actually decides many political issues. And that Court is small (enough so that a single retirement can throw things into disarray) and unrepresentative of America at large.
In an earlier article, responding to Democrats’ plans to “pack” the Court with several additional justices whenever they get control back, I suggested going a step further, and add fifty new justices, one each to be appointed by every states’ governor. My proposal wasn’t entirely serious, being meant to point up the consequences of opening the door on this topic. But on reflection, maybe it was a better idea than I realized.
Under my proposal, the death or retirement of a single justice wouldn’t be much more than a blip in the news, instead of something serious enough that there are people talking about violence in the streets. A Supreme Court composed of 59 justices wouldn’t have the mystique of the current Court — you might believe in 9 Platonic Guardians, but the notion of 59 such is absurd. And since governors would presumably select people from their own states, it would bring a substantial increase in diversity to the Court.
It’s hard to even imagine how that would work or whether it would have the desired affect, but I doubt that such a law could ever be passed by Congress in order to set it up. And why would it stop
at 59?
Congress also has the ability – at least, on paper – to limit the Court’s jurisdiction in appeals cases by taking certain topics off the table. But again, I doubt that Congress would ever pass a law taking away really important areas of contention from the Court’s jurisdiction. The Court and its increased power are too tempting a way to circumvent the legislature and even the president, and since appointments continue for life, it seems that every appointment from now on is going to start a war, either metaphorical or actual.
[NOTE: Regarding Bork’s hearing, Joe Biden played a role:
Bork also contended in his best-selling book, The Tempting of America, that the brief prepared for Sen. Joe Biden, head of the Senate Judiciary Committee, “so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility.”
Plus ça change, plus c’est la même chose.]
