The Senate Judiciary committee is about to approve along party
lines the nomination of Judge Amy Coney Barret to the Supreme
Court. Once sent to the full Senate, probably before the presidential
election that is mere weeks away and in which voting throughout the nation has
in many places already begun, it will again be approved along party
lines. She will then be immediately sworn in and become the 115th person
to sit on the Supreme Court
Barrett, currently a judge on the US Court of Appeals for the
Seventh Circuit, is what is generally referred to as an originalist and strict
constructionist. This means she claims to interpret the Constitution and
its amendments as written and construed by the framers and believes it is
illegitimate for unelected justices to impose their own policy or
jurisprudential preferences on that document.
It is widely expected -- and with more than reasonable basis --
that Barrett will vote to overturn Roe v. Wade, the Court's 1973
decision legalizing abortion. She has written that Roe is
not a "super-precedent", which is how originalists protect decisions
-- like Brown v. Board of Education ---which originalism would
otherwise preclude but they do not want to disturb (because they know that, in
doing so, they'd kill their movement). She also clerked for Justice
Antonin Scalia -- the dean of originalists who opposed Roe -- and
is one of his more aggressive admirers.
In 2006, she actually signed on to a two-page ad sponsored
by a group calling itself the Right to Life of St. Joseph County. The ad was
run on the anniversary date of the Roe decision. It
opposed "abortion on demand" and supported "the right
to life from fertilization to the end of natural life." And since
becoming a judge on the Seventh Circuit in November 2017, she has
joined dissents upholding laws banning abortion for minors absent parental
notification, banning abortions if they are pursued for particular reasons, and
requiring the burial and cremation of fetal remains.
If, as is likely, Barrett votes to overturn Roe, it
cannot be saved. Justices Breyer, Sotomayor and Kagan will preserve the
precedent but everyone else now on the Court is on record -- one way or the
other -- as opposing it. Chief Justice Roberts, an institutionalist worried
about a politicized Court, may attempt some triage in the form of declining to
hear cases where the issue might arise or deferring to lower courts where
possible, but even these tactics will have limited utility. Because, with
Barrett on the Court, it will have six dyed-in-the-wool conservatives and
originalists.
Under the Supreme Court's rules, only four are required to accept
a case and five can stay a lower court order.
So, even if Roberts wanted to hit the brakes, he will not be driving
the train anymore.
What will be lost when Roe is killed?
In the overheated and tribal world of today's American politics,
what is at stake with the destruction of Roe is generally
missed. This is because, though everyone knows the headline result
of the case, almost no one outside the academy has read the decision and
even fewer understand the basis for the right to privacy on which it rests.
That's too bad.
Right wingers would have us believe that Roe was
conjured out of thin air. For decades, states had made abortion illegal,
and though these acts of legislative fiat never killed the
practice (and actually wound up killing many women), neither had the
practice killed the laws. Then, in a grand act of illegitimate judicial
hubris, the Supreme Court upended it all.
This is the story they tell and have told for forty-six years.
And it is a lie.
Here are some facts.
In the late 1960s and early 1970s, when Roe was
litigated and making its way to the Supreme Court, a number of states were
repealing their anti-abortion laws. In 1970, New York made abortion legal
through the twenty-fourth week of pregnancy. By 1971, Alaska, Washington and
Hawaii had decriminalized early term abortions. By the same time,
thirteen other states permitted abortion if the mental or physical health of
the mother was at risk. Even Ronald Reagan, a conservative stalwart,
signed into law California's bill doing so in 1967. The trend was
decidedly in the direction of abandoning criminalization as a policy.
Critics, including the late Justice Ruth Bader Ginsburg,
think Roe short-circuited this trend by removing the issue
from the political branches across the country and resolving it immediately and
for everyone. And they may be right. Roe single-handedly
created the Right to Life movement and turbocharged strict constructionism on
the bench and in the academy. The opinion itself was also long, and in
surveying the history of abortion the world over, summarizing the opposing
medical and ethical views, and then fashioning its three-trimester rule where
the scope of the right changed over time, it struck many as more akin to a
statute than a Supreme Court decision.
But, apart from the politics and the presentation, was Roe wrong
as a matter of Constitutional law?
The answer is no.
The most important passage in Justice Blackmun's opinion in Roe occurred
seventy-six pages into it. There, Blackmun noted that, though "[t]he
Constitution does not explicitly mention any right of privacy", the
document makes no sense without it.
He didn't say it that way.
But I have.
Because what he did say -- in noting the "zones of
privacy" the Court had by then found to exist as a consequence of
the First Amendment (guaranteeing free speech or none at all), the Fourth and
Fifth Amendments (protecting against unreasonable searches and seizures,
self-incrimination, and deprivations of liberty without due process), the Ninth
Amendment (reserving unenumerated rights to the People), and the Fourteenth
Amendment (which, for decades, had been held to protect fundamental rights with
respect to marriage, education and child-rearing) -- made it clear that the
document as a whole collapses without it.
Put differently, there are certain rights inherent in being an
individual, rights that exist regardless of the state and therefore only
carefully and narrowly subject to regulation by it. Jefferson eloquently
said these were the self-evident rights of life, liberty and the pursuit of
happiness. To that, the less eloquent among us have added the equally
important right . . .
To be left alone.
Especially north of the knees and south of the navel.
And this, unfortunately, is what the strict constructionists and
Judge (soon to be Justice) Amy Coney Barrett do not get.
They think they can jettison Roe and the world
will go confidently on its way. But it won't. Because once you have decided
that the Constitution does not contain the right to privacy set out in Justice
Blackmun's decision, a host of other questions arise, none of which have
acceptable answers. For example, if there is no right to privacy,
is Griswold v. Connecticut -- the case holding that states
could not make illegal the purchase of birth control because it violated the
right to "marital privacy" -- still good law? How
about Loving v. Virginia, the case that declared anti-miscegenation
statutes unconstitutional? Or Frontiero v. Richardson, the
case that overturned gender-based housing allowances in the military as
violative of both the equal protection and due process clauses? Or Lawrence v. Texas, the 2003 decision holding anti-sodomy statutes uncontitutional? Or Obergefell,
the case that only recently held statutes forbidding gay or lesbian marriage
unconstitutional?
As with Roe, the Constitution did not mention any of
the rights upheld in those cases either. Nor did any of the framers -- either
in 1787 when the Constitution and Bill of Rights were written or in 1868 when
the Fourteenth Amendment was passed -- have any of these subjects in mind when
they put pen to paper and created the foundational documents.
And it gets even worse.
Originalists like Judge Barrett take refuge in the notion of
so-called "super precedents". These are decisions from the
Supreme Court ostensibly so accepted that they will never be overturned
regardless of their unsteady moorings in the originalist version of what the
Constitution requires or protects. According to Judge (soon to be
Justice) Barrett, the usual suspects for this protective shield are two
opinions from the Marshall Court in the early 1800s -- Marbury
v. Madison, which announced the principle of judicial review, and Martin
v. Hunter's Lessee, allowing federal judicial review of state court
judgments; Helvering v. Davis, upholding the Social Security
Act; the Legal Tender Cases, which made government-issued
paper money constitutional; Mapp v. Ohio, which made the
Fourth Amendment's ban un unreasonable searches and seizures applicable to the
states; Brown v. Board of Education, which held
segregated schools unconstitutional; and the Civil Rights Cases,
which held the Fourteenth Amendment applicable only to state
action.
None of this, however, is true.
There is no statute, legal principle or Supreme Court authority
that in any way supports the view that there are any cases known as
"superprecedents." The term was invented by a couple of law
professors in the 1970s and then promptly went into hibernation until 2005,
when Sen. Specter tossed it to John Roberts as a sort of life line in the
latter's confirmation hearings. Like other conservatives, Roberts fashions
himself an originalist. For him, Supreme Court justices are umpires calling
balls and strikes, not players in the game. They get to apply the
Constitution as written and as understood when it was written.
Unfortunately for him, when the Fourteenth Amendment's equal protection and due
process clauses were added to the Constitution, no one thought that either of
them forbade segregation in public schools or in any other
accommodations.
Which created a problem.
For originalists.
Who knew their interpretive scheme would die if it killed Brown.
So conservative legal scholars invented the deus ex
machina of "superprecedents", a sort of
jurisprudential Batman and Robin that protects originalists from . .
.
Themselves.
Since then, others have jumped on the superprecedents train, Judge
(soon to be Justice) Barrett among them.
And her view exposed the whole notion for the canard it always
was.
Super precedents, she noted in a 2013 law review article, were
"cases that no justice would overrule, even if she disagrees with the
interpretive premise from which the precedent proceeds." She then
explained how an opinion became one: "The force of so-called
superprecedents . . . does not derive from any decision by the Court about
the degree of deference they warrant . . . The force of these cases derives
from the people, who have taken their validity off the Court's agenda.
Litigants do not challenge them. If they did, no inferior or state court
would take them seriously, at least in the absence of indicia that the broad
consensus supporting a precedent was crumbling. When the status of
a superprecedent is secure -- e.g., the constitutionality of paper money -- a
lawsuit implicating its validity is unlikely to survive a motion to
dismiss. And without disagreement below, the issue is unlikely to make it
onto the Court's agenda."
This, however, creates more problems than it solves.
If superprecedent status is simply a matter of public acceptance,
what is the status of a Court decision before it reaches that
point? Brown was widely disparaged throughout the south
when it was initially decided and school desegregation was not fully enforced
there until well into the Nixon administration more than fifteen years
later. Could the decision have been overturned during that period but not
thereafter? Is the reverse true as well? According to
Barrett, once a decision is not widely accepted, it becomes fair
game.
None of this justifies originalism. Indeed, to the contrary,
the whole notion makes a mockery of originalism's interpretive commitment
because it ties the legitimacy of the Court's opinions not to the
Constitution's text or the meaning assigned to that text by its drafters but
rather to the whims of public opinion.
For years, conservatives complained that justices should not be
acting like legislators.
Now they are telling them to act like pollsters.
At her confirmation hearings this week, Judge Barret was careful
in claiming that Roe is not a superprecedent. Neither,
apparently, are Griswold, Loving, Frontiero, Lawrence or Obergefell. But
why not? If you surveyed Americans today, you'd get super-majorities
opposing any effort by legislators to ban condoms. You'd probably get
close to that if you suggested bans on interracial marriage, and even though
gay rights and gay marriage as constitutional rights are relatively recent phenomena,
significant majorities support them as well. Ditto for opposition to
gender-based discrimination on statutory benefits. Even with Roe, a
solid majority of American do not want to ban abortion other than in cases
where the mother’s life is endangered. But once (not if) Roe is
overturned, snap back and trigger laws throughout the country will make that the law of the
land in almost half the states.
At the hearings this week, Barrett appeared to depart slightly
from the position taken in her 2013 article. In response to questions,
she testified that "Roe is not a superprecedent because calls
for its overruling have never ceased." Presumably, this saves Griswold and Loving. But
not Roe or Lawrence or Obergefell. Even though all of them are premised in whole or part on the right of privacy.
In truth, however, it saves nothing.
Privacy is not a whim.
It's a right.
There is nothing super about Constitutional protections that live
or die on the basis of public acceptance. The whole purpose of the Bill
of Rights is to protect minorities from majorities and the whole point of
judicial review is to enforce those rights even when majorities do not want to
and even after "calls for . . . overruling" them have not
ceased. And in times, like these, of division and populist outrage, those
protections become even more important.
Public opinion is malleable.
It can be ephemeral.
And as has been proven in the wake of the election in 2016, it can
also be dangerous.
We live in an era of populist outrage. White grievance has
metastasized, public health has been politicized, and even the lives of public
officials have been jeopardized. Originalism created none of that.
But if, as is likely, it takes hold of the Court, it could cripple an
institution that might otherwise invoke -- to echo
Lincoln -- the better angels of our nature. Now is not the
time to embrace the fiction of superprecedents because we are unwilling to
reject the farce of originalism.
The Constitution was never set in stone. It was written by
lawyers steeped in common law. They used words like "due
process" and "equal protection", the meanings of which were not
fixed then, had not been fixed before, and were not expected to be fixed in the
future. They expected judges to be jurists, to mine the inheritance of
common law in an effort to divine principles that could guide an ever-changing
world. They did not expect them to be legislators, engaged in the rough
and tumble of every day politics, with the trade-offs and compromises
that entails and the squared circles it often creates. But they also did
not expect them to be pollsters or the tools of aggressive litigants.
They thought judges should be better than . . .
All of that.
So, Judge (soon to be Justice) Barrett, if you can . . .
Be better.
If you can't . . .
Be quiet.
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