Roe Undermines the Supreme Court’s Legitimacy

By MATTHEW J. FRANCKROBERT P. GEORGE – November 11, 2021 10:51 AM – for National Review

(Roman Genn)

The justices’ duty is clear

In Dobbs v. Jackson Women’s Health Organization, the state of Mississippi has directly confronted the Supreme Court with an argument that, believe it or not, no state has pressed since Pennsylvania did so 29 years ago in Planned Parenthood v. Casey — that Roe v. Wade was a grievous constitutional error and should be overturned.

Casey was a close-run thing, a 5–4 decision that both preserved a virtually unlimited “right” to abortion and exposed how nakedly political and lawless was the “jurisprudence” that shielded the abortion license from democratic accountability.

The Dobbs case, then, is a long-awaited opportunity for the Court to get right with the Constitution. There are now six justices appointed by Republican presidents who are known or strongly believed to think that Roe and Casey were terrible constitutional blunders resulting in an appalling toll of human lives. There has been no better moment in the last half century than the present one for the righting of an injustice — an unconstitutional injustice.

Yet that is just what many of us thought when Casey was on the docket — that with the appointments of five justices by Ronald Reagan and George H. W. Bush, in addition to the Roe dissenters then still on the Court (William Rehnquist and Byron White), we had an excellent chance of seeing Roe fall. The shock of the Casey ruling on June 29, 1992, was that Roe was propped up in a joint opinion by three of those GOP appointees — Sandra Day O’Connor, Anthony Kennedy, and David Souter — even while they declined to affirm that Roe had been correctly decided. Instead, by playing fast and loose with the doctrine of stare decisis, the troika asserted that the 1973 decision must be preserved because otherwise the Court’s “legitimacy” would be called into question.

We cannot peer into the souls of the authors of the Casey decision to determine whether they were afraid to spark a firestorm of criticism of their deep-sixing “a woman’s right to choose,” or feared that our politics would become more antagonistic, or were themselves quietly in favor of the abortion license. But we know that no good reason existed for the disaster that was Casey — and that they offered none.

As we and others have pointed out, the Mississippi law at issue in Dobbs, which prohibits elective abortions after 15 weeks’ gestation, cannot be rationally upheld on any ground that does not repudiate Roe and Casey. But now, 30 annual terms of the Court later, the hue and cry of abortion supporters who fear that Roe may fall this time is that the median justices — they no doubt have in mind Chief Justice John Roberts and Justice Brett Kavanaugh — must cling steadfastly to Roe and Casey for the sake of (you guessed it) “the Court’s legitimacy.”

It’s a funny thing, this “legitimacy” of the Supreme Court. None of the table-thumpers insisting on its importance can quite say what it is, or where it comes from.

The other branches of our government derive their legitimacy from the election of their officeholders according to constitutional and legal processes and the conformity of their official acts with the Constitution. In short, if public officials acquired their offices legally, and act legally, the legitimacy of the institution in which they serve is not formally in question. Widespread criticism of their decision-making as foolish or wrongheaded, even at times by majorities, is par for the course in our system but does not raise a question of legitimacy. It might in a parliamentary system, where governments may fall and elections can be called when democratic sentiment turns against a ministry’s performance and makes itself felt in the legislature. But ours is a system of elections limited to those fixed on the calendar. An unpopular president with congressional majorities against him is no less legitimate for all that, and so too Congress and its members are legitimate makers of law regardless of the popularity of members, parties, leaders, or the houses of Congress themselves. If the legislative and executive branches obey the Constitution, the law’s demand for legitimacy is satisfied. Anything beyond this formal norm is for the electorate to decide at the next opportunity.

Now apply these observations to the federal judiciary. The justices duly appointed by the president, after being nominated by him and confirmed by the Senate, hold their offices legitimately “during good Behaviour” (i.e., for life or until they choose to resign or retire) — subject only to impeachment. They are, by the Constitution, relieved of any need to respond to the electorate, to please voters or any other identifiable “public.” That leaves the one thing they have in common with members of the other branches — that they may be judged by their conduct in office. The public can respond politically, legally, and in extremis with the penalty of removal from office. Reform of the Court for sound reasons should not be off the table. But merely shouting at them that their decisions are “illegitimate” because one dislikes the results and threatening drastic measures such as Court-packing simply to get different ones is, and ought by them to be considered, sound and fury, signifying nothing.

The Casey troika evidently did not understand this point. O’Connor, Kennedy, and Souter described the Court’s “legitimacy” as “a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.” This was at once a grandiose vision of the Court’s role in our constitutional order and a kind of cringing neediness for “the people’s acceptance,” however that was to be measured.

Elsewhere in their opinion, the justices spoke of the really important cases they decide as those where “the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” There was that Olympian manner again — but also the same neediness, just beneath the surface. For what if the attempted healing of “national division” didn’t work? And of course it didn’t. As everyone knows, and could see at the time, by clinging steadfastly to Roe — a ruling Casey exposed as lacking any roots in the text, logic, structure, or original understanding of the Constitution — the Court only exacerbated the country’s divisions and guaranteed continuing controversy. What then became of the “legitimacy” the justices so craved?

Contrast this alternation between thundering “We’re in charge” and mewling “Please love us” with the robust, confident constitutionalism of Chief Justice Rehnquist in his Casey dissent. Rehnquist, whose opinion is not as well known as the bristling dissent of Justice Antonin Scalia, never yielded an inch toward considering Roe a binding precedent and took the majority to school on the doctrine of stare decisis.

More important, Rehnquist had a sober understanding of the Court’s “legitimacy.” Remarking on the joint opinion’s strange argument that a highly controversial ruling should be preserved — whether right or wrong — or else public estimation of the Court’s legitimacy would decline, Rehnquist wrote:

Because the Court’s duty is to ignore public opinion and criticism on issues that come before it, its Members are in perhaps the worst position to judge whether a decision divides the Nation deeply enough to justify such uncommon protection. Although many of the Court’s decisions divide the populace to a large degree, we have not previously on that account shied away from applying normal rules of stare decisis when urged to reconsider earlier decisions. [Emphasis added.]

A judiciary tasked with the duty of sometimes contradicting the people’s will is irresponsible, in Rehnquist’s view, if it consults public opinion in making its decisions.

Not for Rehnquist was that poisonous combination of preening and cringing that characterized the Casey joint opinion. “Public protests should not alter the normal application of stare decisis, lest perfectly lawful protest activity be penalized by the Court itself.” Sometimes, indeed, the chief justice observed (taking the very historical examples adduced by the joint opinion), the overturning of a precedent burnished the Court’s reputation, by frankly acknowledging past errors in such cases as Plessy v. Ferguson and Lochner v. New York. But these precedents were not repudiated, Rehnquist pointed out, for the sake of raising the Court’s profile in public opinion, or in response to the shifting winds of political controversy, or to preserve or enhance the Court’s legitimacy:

The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution. The doctrine of stare decisis is an adjunct of this duty, and should be no more subject to the vagaries of public opinion than is the basic judicial task.

Chief Justice Roberts, who clerked for Rehnquist when the latter was still an associate justice in 1980–81, is said to be an “institutionalist” par excellence, intent on safeguarding the Supreme Court’s reputation for probity, its dedication to the rule of law, and its giving a wide berth to needless involvements in political controversies. No less dedicated to all these things was his mentor Rehnquist, who in addition to being a fine judge was a talented amateur historian of our constitutional order. Rehnquist understood the imperative that the Court appear to be, and much more important actually be, moved purely by legal considerations and never by political ones. And, knowing to the end of his days that Roe and Casey had been purely political decisions, he had no truck with their perpetuation.

The same idea of tying the Court’s “legitimacy” to public opinion can be heard in arguments about the Court’s “political capital” — as a thing to be conserved or spent, as circumstances require. We confess that one of us has recently used this expression as applied to the Supreme Court, but on second thought the idea is not an apt one for the judiciary.

An elected official has political capital by virtue of his election — that is, a reservoir of trust with the voters allows him to take some risk that a political decision will displease them. The proximity to an election, the margin of one’s last victory, the longevity of one’s service to constituents, one’s felt capacity to persuade — all these enter into an officeholder’s calculation of how deep that reservoir of trust is and how much he can afford to drain it. Persuasion, campaigning, the occasional trimming compromise, sometimes even remorse and contrition can replenish the spent capital.

But the idea has no application to the federal judiciary. The justices have no elections behind them or ahead of them, no direct relationship to any electorate. In the ordinary course of their decision-making they gain nothing by pleasing voters and lose nothing by displeasing them. True, they have some means of persuasion in their power. That might be said to be the function of their judicial opinions: to persuade readers that their decisions are grounded in a proper understanding of the law.

But this is better conceived as a duty of explanation than as one of persuasion. The justices seek no approval from voters, or even from the members of Congress who have the power (as Hamilton put it in Federalist No. 81) to “degrad[e] them from their stations.” They write opinions in order to record the reasons for their decisions, for their own and their successors’ future reference, for lower-court judges who require their guidance, for the parties who are owed an account of a victory or defeat. And yes, as Rehnquist understood, they write opinions to satisfy the only criterion of legitimacy that matters for the judiciary: that readers of every stripe may see that their decisions spring from the law of the land, not from their own will or their own felt necessities. These opinions will not satisfy everyone — after decisions by a divided Court, majority and dissenting opinions will naturally have their partisans — but the deadliest posture for judges to place themselves in is one in which it is evident that they themselves have let politics intrude on the law. That was the self-inflicted wound to the Court’s very heart in Casey, and the justices would be ill advised to repeat it.

The matter of “legitimacy” comes down to this: To argue that indefensible precedents must be preserved only because they excite half the country to demand their preservation and the other half to demand their abandonment; to say that the Court risks some “political capital” in doing what a majority of the justices know is the right thing — the constitutionally correct thing; to quake at the thought of the political conflicts that will be loosed on the world by a sound interpretation of the Constitution, when a half century of experience shows that those conflicts were generated in the first place by a ruling that traduced the Constitution — all such arguments are founded on a confusion of the business of law with the business of politics.

And if any justices who know what the Constitution demands should be tempted to set it aside, to temporize or trim, because they fear the firestorm that overturning Roe and Casey might ignite, they should check themselves by recalling that they do not have the gift of prophecy. Upholding the atrocity of Roe will not quench the fires of abortion politics; that was the evident belief of the Casey trio, and the past three decades have proven them disastrously wrong.

The way ahead is fraught with peril for American politics either way. There is trouble on either hand, whichever way one turns. But as Robert Frost once put it, there is “no way out but through.” We doubt that the political flames will reach the steps of the Supreme Court’s marble temple; “Court-packing” in particular should be seen as an empty threat. Even President Biden’s commission, most of whose members are liberal Democrats, seems to shrink from openly adding justices merely to get different results, since it will be seen, as it was in 1937, as an attack on judicial independence, and one that can be repaid in kind by the other party. But come what may, the solemnity of an oath has its own demands on the conscience, and the justices who know that Roe and Casey are abominations have the choice — indeed the obligation — to hand down a principled ruling in Dobbs. They can thus honor the Constitution to which they swore an oath of fidelity.

There is never a good reason not to do the right thing. There will never be a better time than the present to do it. We are confident that six justices know that the right thing to do is to consign Roe and Casey to the ash heap of Supreme Court precedents that were later overturned precisely because they dishonored the Constitution in whose name they were handed down.

— Mr. Franck is a lecturer in politics at Princeton University. Mr. George is the McCormick Professor of Jurisprudence at Princeton and the director of its James Madison Program in American Ideals and Institutions

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