AMAC Exclusive – By David Lewis Schaefer
The weekend following the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, reversing the 1973 decision in Roe v. Wade, op-ed columns appeared in two of America’s three “national” newspapers expressing opposite views of the legitimacy of the Dobbs decision. It’s worth taking a closer look at these pieces, as they effectively capture the gulf that currently exists between the left and the right when it comes to abortion, and illuminate why it is that liberals, not conservatives, are the ones who pose a threat to the integrity of the Court and the legitimacy of judicial rulings.
On the one hand, Linda Greenhouse, who covered the Court for the New York Times from 1978 to 2008, published a “Requiem for the Supreme Court,” concluding that the majority had “finished off … the legitimacy of the court on which [its members] are privileged to spend the rest of [their] lives.” Greenhouse castigated the majority opinion’s “arrogance and unapologetic nature,” citing the dissenting opinion’s judgment (practically unprecedented for its vituperation) that the majority had overruled Roe “for one and only one reason: because it has always despised” women’s abortion rights, and through its decision was “substitut[ing] a rule by judges for the rule of law.”
Pronouncing the minority’s words “as terrifying as they are obviously correct,” Greenhouse asked, now that the Court majority had “shed the protection offered by its usual stance that it is simply the passive recipients that the public brings to its door,” where was it “leav[ing] the Court?” Contrary to the judgment by Justice Samuel Alito (who wrote the majority opinion) that Roe and its successor, 1992 decision in Planned Parenthood v. Casey, would continue to cause prolonged “turmoil” if they weren’t overturned, Greenhouse contended that the only turmoil that those decisions had ever caused “was due to the refusal of activists, politicians, and Republican-appointed judges to accept [their] validity” as precedents.
Ms. Greenhouse, it might be noted here, was no disinterested observer of the Court’s abortion policy. As she boasts in her column, her 1970 New York Times Magazine article titled “Constitutional Question: Is There a Right to Abortion?” was “the first article in a general-interest publication” to address that issue. And in 1989, as reported in a 2008 Weekly Standard column by John McCormack, Greenhouse was admonished by her editors for marching in an abortion rights rally – thereby manifestly violating the appearance of impartiality that would normally be expected of a Court reporter.
The opposite view of the legitimacy of the Dobbs decision was presented in a Wall Street Journal column from David B. Rivkin, Jr., who practices appellate and constitutional law in Washington, and Jennifer L. Mascott, a professor at the Antonin Scalia Law School who previously clerked for then-Judge Brett Kavanaugh and Justice Clarence Thomas, both members of the Dobbs majority. In the column, titled “The Supreme Court Reclaims Its Legitimacy,” the authors observed that it was in their Roe decision, not in Dobbs, “that the justices overstepped their [Constitutional] boundaries and ensured that the court would become the focus of political contention for half a century.”
As Rivkin and Mascott point out, far from exemplifying a departure from the Constitutional limits on judicial authority (as much of the popular media, exemplified by Greenhouse’s column, would have it) the Dobbs ruling “imposes no policy.” In other words, the judges did not enact any sort of prohibition on abortions. Instead, by recognizing that the Constitution ordains no “right” to abortion, it returned the issue “to the state legislatures, which had primary responsibility for setting abortion until the court imposed its own views on the country in 1973.” In fact, it should be noted, prior to Roe, a number of state governments had recently liberalized their abortion policies. Through its decision in Roe, the Court arbitrarily intervened in the regular political process, wanting to show that it was in the lead, rather than a laggard, in shaping an ostensibly “enlightened” abortion policy.
A crucial aspect of Rivkin and Mascott’s defense of Dobbs is their refutation of the claim that by overturning Roe, the Court was violating the legal principle of stare decisis (“let the decision stand”) – a claim that Greenhouse makes, citing the Chief Justice’s concurring opinion. However, in overturning Roe the majority itself cites a precedent set in Washington v. Glucksberg (1997), in which the Court concluded “that there is no constitutional grounding for any claimed right that is neither enumerated in the Constitution nor deeply rooted in the nation’s history and tradition” – a rootedness that can hardly be claimed for the practically unlimited right to abortion invented in Roe, given not only its lack of historicity but the unending controversy it has engendered (contrary to Greenhouse’s wish) ever since.
But there was no need to rely on Glucksberg to justify overturning a set of textually groundless Constitutional interpretations. As University of Chicago law professor (subsequently university president and later Attorney General) Edward Levi pointed out in his classic 1949 treatise An Introduction to Legal Reasoning, when it comes to the application of stare decisis (a rule derived from English common law), there is a crucial difference between legal and Constitutional interpretation. In the interpretation of laws, a strong presumption normally exists in favor of either following precedents or modifying them only gradually (if they seem defective), since people’s life decisions are heavily dependent on the assumption that the law will remain stable over time, unless it is altered by elected governments.
However, when it comes to Constitutional interpretation, the existence of a written charter (the Constitution) against which the validity of laws can be measured always leaves open the possibility, indeed the necessity, of overturning manifestly erroneous precedents. It was on this ground that Abraham Lincoln challenged the Constitutionality of the infamous Dred Scott decision, which relied on phony history and an obvious misreading of both the Declaration of Independence and the Constitution in order to invalidate the Missouri Compromise’s restriction on slavery – and, indeed, to deny that black people could be eligible for citizenship. (That decision, like Roe v. Wade, was justified by its advocates as needing to “settle” a national controversy – in that case, over the extension of slavery – by removing it from the political process.)
Without denying the finality of the Dred Scott decision with respect to the specific case it addressed, Lincoln warned that if the courts were allowed to settle matters of Constitutional interpretation based on the judges’ arbitrary will or preference, then the people would have ceased to be their own rulers. Hence, he urged the selection of a president and senators who would appoint judges pledged to reversing the decision.
Lincoln’s position finds support in the first text written by one of the Constitution’s authors to address the subject of judicial review. In Federalist No. 78, Alexander Hamilton justifies the authority of courts to declare void “all acts contrary to the manifest tenor” of the Constitution (emphasis added), on the ground that otherwise all that document’s “reservations of particular rights or privileges would amount to nothing.” Note that Hamilton’s argument presupposes that the Constitution has a fixed, if broad, meaning, rather than being a “living” document that judges are free to rewrite so as to favor their particular wishes. Only “manifestly” unconstitutional laws are subject to judicial invalidation.
The majority in Roe v. Wade made no serious effort to find any grounding for their decision in the Constitution. Instead, they drew on a supposed “right to privacy” asserted in the 1965 case Griswold v. Connecticut, which asserted thatthe privacy right was located in “penumbras” formed by “emanations” issuing from various provisions of the Bill of Rights – language recalling medieval Scholasticism rather than anything like a reading of the Constitution’s “manifest tenor.” (After all, if the Constitution ordains a right to privacy, why am I compelled to report my annual income to the IRS?) In fact, both the liberal Constitutional scholar John Hart Ely and famed liberal Supreme Court Justice Ruth Bader Ginsburg subsequently criticized Roe, with Ginsburg observing during a 2013 talk at the University of Chicago that the ruling “seemed to have stopped the momentum on the side of change” in favor of abortion rights, in contrast to a more gradual process that would have involved state legislatures.
Critics who argue that Dobbs violates stare decisis would have a hard time justifying the Supreme Court’s 1954 decision in Brown v. Board of Education, which overturned a precedent of nearly six decades (Plessy v. Ferguson) by ruling that racial segregation in public schools (soon extended to other public facilities) was unconstitutional. Yet although the opinion supporting the Plessy decisionwas poorly reasoned (relying on manifestly silly “social science” rather than on serious textual analysis, which would have been far more persuasive), little objection was raised to it outside of Southern and a few midwestern states. Though the decision took some time to enforce, and began to take full effect only with the enactment of the Civil Rights Act (1964) and the Voting Rights Act (1965), within some 15 years it achieved the status of a national moral consensus. Nothing like that resulted even 49 years after Roe, opposition to which has if anything grown stronger with time.
It is regrettable that some critics of Dobbs have already engaged in acts of violent protest to express their displeasure – doubtless partly inspired by Senator Chuck Schumer’s leading a mob up the Court steps in 2020, threatening newly-appointed justices Neil Gorsuch and Brett Kavanaugh that they would “pay the price” and “reap the whirlwind” if they voted to roll back abortion rights.
Those who believe that abortions – with varying levels of restriction – should be lawful should channel their energies into the regular political process at the state level, just as Lincoln argued in response to Dred Scott, rather than relying on the Court to rewrite the Constitution in their favor. That is what constitutional government means.
David Lewis Schaefer is a Professor of Political Science at College of the Holy Cross