The heart of the problem with American judges
With the confirmation of Justice Amy Coney Barrett in the dying days of the Trump presidency, there is likely now a majority on the United States Supreme Court to overturn Roe v. Wade and Planned Parenthood v. Casey, the two landmark legal precedents that, together, have prevented states from banning abortion outright.
To be sure, it's possible that the court, perhaps responding to concerns about its institutional legitimacy, might undermine the right in installments, permitting increasingly burdensome restrictions on abortion. But in the end, it's going to be obvious what's going on. A conservative majority is set to undo the federally-guaranteed abortion right after nearly a half-century of intense struggle.
I am pro-choice, yet I have mixed feelings. First, because I don't believe the United States Constitution has anything whatsoever to say about abortion, and that the judicial decisions constructing a right to abortion are little more than left-wing judicial activism. Second, and more importantly, because my deepest attachment is to real democratic politics—to the idea and practice that the people generally should decide contentious issues for themselves, and on equal terms, at the ballot box.
Although I understand that, as a person whose rights are unlikely to be taken away by the legislature, it is far less difficult for me to say this, I do believe that in the long run, the surest safeguard for decency and political progress in our society lies not in lawyers, judges and paper constitutionalism, but in a vibrant democratic culture.
I teach law at New York University. When I talk to my students, I am always surprised that they seem to understand constitutionalism—and in particular, judicial review—as working comfortably hand-in-hand with democracy. But in reality, the relationship is more difficult and subtle: Constitutionalism and democracy are more like frenemies.
Constitutionalism helps structure democracy, and, by slowing down change, smooth out the vicissitudes of democratic politics. But constitutionalism also restricts our democratic choices. And if you overdo it, constitutionalism can preempt necessary democratic development. At the extreme, instead of making democratic life more predictable, interventionist courts can spark long-lasting and intense conflict.
That's what happened in 1857 when the Supreme Court stepped in to stop Congress from prohibiting slavery in US territories. It hoped the Dred Scott case would lead the nation away from conflict. That's … not what happened. If anything, Dred Scott intensified the conflict over slavery and hastened our nation's descent into civil war.
Something like that is also what happened in 1973 when the Supreme Court stepped in to preempt the democratic debate and declare abortion a right in Roe. Just think of the myriad ways in which the struggle over abortion that Roe intensified has warped our politics. The backlash became the defining issue of 20th- and 21st-century partisanship. The Democratic and Republican parties became monolithic on abortion, and on opposite sides. Enmity over abortion helped to feed other divides—between urban and rural, religious and secular and those with and without a college education.
On balance, this warping of our politics hurt progressives and helped reactionaries. Perhaps most importantly, disagreement over abortion rights prevented the formation of what might otherwise have been a powerful political alignment of social justice-oriented Catholics and secular liberals. Here, I speak from direct experience.
I am Catholic, and I grew up among people for whom Catholic social teaching about the poor, workers, immigrants, and the equal dignity of all persons made them natural allies of the democratic left. But for so many I knew, the struggle over abortion overwhelmed their other political commitments. For many, it was the Supreme Court's constitutionalization of abortion that turned disagreement into a great moral schism.
In his book Law and Disagreement, my NYU colleague Jeremy Waldron gives us perhaps the best account of why deep moral controversies are best resolved democratically, not by judges. Unlike courts, he says, legislatures do not (at least not routinely) claim their decisions are required by law, logic or morality. All a legislative victory means is that you won the vote, for now. And that difference is crucial. If the Supreme Court had left abortion to legislatures, the winning side in a particular battle may claim victory but cannot expect that the losing side will end its disagreement. People find it easier to accept that they have lost a vote than that their conception of justice is wrong.
Of course, these sorts of temporary victories will not satisfy partisans who want the abortion question decided "once and for all." But in a world where people are going to continue to disagree politically, these sorts of temporary settlements may be all we can expect. And on the eve of what seems like Roe's and Casey's impending dismantling, can we say that we have done better by constitutionalizing the issue? No, we can't.
In fact, I'd argue Roe and the ensuing half century of turmoil it created is Exhibit A for the dangers of too much judicial constitutionalism. Not too long ago, conservative legal thinkers worried about an overweening partisan judiciary. But in the wake of Roe, the Republicans drifted toward and eventually embraced a strategy of fighting fire with fire, nurturing (mostly within what's called the Federalist Society) a generation of young, right-wing activist judges. During the Trump presidency, the focus on judges became more like a monomania. A Republican Party with literally no policy platform to its name found unity of purpose on one mission only: taking over the federal courts.
Now the new conservative court majority has started to produce results. Last week, the court invalidated a California public health statute on the basis of an aggressive theory of what the Constitution's "free exercise" clause requires that a majority on the court had rejected until now. But the court's turnabout in religion cases would pale in comparison to what it seems poised to do soon: hold that the Constitution prohibits Congress from delegating its legislative power to administrative agencies.
You won't find any such "non-delegation" rule in the Constitution. But conservatives have been agitating for years to cripple the federal government's power to regulate business by requiring Congress to write into the law every detail of government regulations rather than, as has been the norm since the New Deal, legislating in broad strokes and relying on experts at administrative agencies to fill in the details.
In the 2019 case Gundy v. United States, a dissent by Justice Neil Gorsuch joined by three other conservative justices argued openly for reviving the non-delegation doctrine. They have now added Brett Kavanaugh to their ranks. After his confirmation, Kavanaugh wrote a short opinion concurring in the court's refusal to hear a case that was basically a replay of Gundy, but made it clear that as soon as the right case came along, he was ready to provide the fifth vote needed to resurrect non-delegation: "Justice Gorsuch's scholarly analysis of the Constitution's non-delegation doctrine," Justice Kavanaugh wrote, "may warrant further consideration in future cases."
As the court moves to intervene in democratic decision-making, the US drifts ever closer to rule-by-judges. There is nothing to celebrate about that. Such aggressive judicial supremacy has empowered lawyers, disempowered citizens and turned what could be democracy-enhancing political debates into arid and divisive legal wrangling.
It's time for liberals to fall out of love with our extremist American version of judicial review. And, it seems, this is starting to happen: there have been a slew of recent court reform proposals from the left, including judicial term limits, Supreme Court supermajority voting requirements, and, perhaps most prominently, court-packing.
But in the end, none of these get to the heart of the problem. The reason we have partisan judging is because judges have too much power. If we want to fix the problem, we have to find ways to cut back on courts' ability to intervene in our democracy.
I have made a proposal to do that, suggesting that Congress should exercise its power under the Constitution's Article III to shrink courts' jurisdiction. But before we can fix the problem, we first have to find agreement on what it is. The problem isn't that judges are too liberal or too conservative. It's that judges are too powerful.
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