What’s a court for?

Many of the problems in American politics can be traced to a failure of Americans to understand the principles informing their Constitution (or the idea of constitutions in general).

In perhaps no area is this failure more obvious than the role of the federal courts and how they should address controversial issues; hence some observations as the Supreme Court, through the vehicle of Dobbs v. Jackson Women’s Health Organization, considers overturning Roe v. Wade and the right to abortion it abruptly discovered.

First is that the public pressure being brought to bear regarding Dobbs is inappropriate in terms of the court’s constitutional role. The court doesn’t (or shouldn’t) exist to advance ideological agendas or produce public policy victories; rather, it exists to impartially assess the constitutionality of legislation and the actions of public officials.

The lifetime tenures granted federal judges by the founders were specifically intended to minimize their susceptibility to the kind of unseemly public pressure campaigns we are now witnessing.

What we should all want for the sake of the rule of law are judges who interpret the Constitution and statutes as intended, rather than follow opinion polls or worry about the legitimacy of the court in the eyes of partisan pundits.

Second, that the comments made by the liberal members of the court during oral arguments in Dobbs, intended to defend Roe, actually had the opposite effect, suggesting that it should be preserved regardless of constitutional fealty because overturning it would make the court appear too political.

Justice Elena Kagan warned that the court should avoid leaving the impression that it responds to “what part of the public yells the loudest.”

Justice Sonia Sotomayor questioned whether the court could survive “the public perception that the Constitution and its reading are just political acts” if it now jettisoned Roe.

But just as it is possible to argue that caving to public pressure in ruling would be a mistake, so too would ruling in such a way as to avoid giving the impression of having done so. In either case, it isn’t proper constitutional interpretation but extra-constitutional considerations (including either susceptibility to or rebuke of public pressure) that would be driving the rulings.

Going further, Sotomayor’s fear that the “stench” of politics would accompany overturning of Roe and thereby damage the court’s legitimacy disingenuously overlooks the fact that the central criticism of Roe all along has been that it was politically motivated; that even many who support legal access to abortion see it as a quintessential case of judicial activism that seriously undermined the court’s integrity (such that perceptions of the court’s legitimacy might actually be enhanced by correcting a politically driven mistake).

The greatest threat to the legitimacy of the court will always be illegitimate rulings, defined as those which have no basis in constitutional text and reflect only the ideological biases of justices.

Third, although we often hear the

claim from Democrats that our democracy is at risk (usually in response to Democrats not getting what they want from it), it is useful to remember that Roe arbitrarily took the abortion issue away from the democratic process and that Democrats have now spent nearly half a century trying to prevent it from being returned.

In the end we come, then, to a broader realization — that no constitution, including ours, will ever be perfect in the eye of any beholder. There will always be a great deal in it that we wish wasn’t there and certain things that aren’t there that we wish were.

We too often make the mistake of assuming that that which we politically prefer must be constitutional (or even mandated by the Constitution) and all that we oppose can’t possibly be.

On Roe, the only legitimate question is whether the court got it right back in 1973. It shouldn’t matter a whit whether we (or the justices) favor or oppose abortion as a matter of policy, or what we (or they) would like the Constitution to say, as opposed to what it actually says.

If no right to abortion can be found or even reasonably inferred through constitutional perusal, then the only legitimate course of action is to overturn Roe, regardless of its status as long-standing precedent, since there is no obligation to uphold precedents that were incorrectly decided (cue the references to Plessy v. Ferguson).

There is no need to over-think this and make it more difficult than is. The justices should do their job of properly interpreting the Constitution, and leave the rest of it, the politics, to “we, the people.”