Only “some experts”? What precisely is the expert knowledge necessary to grasp that the judiciary has nothing to do with public opinion? ABC News helpfully includes this in their ongoing series Democracy in Peril, but perhaps this explains one reason it seems endangered at the moment.
It’s especially ironic, given that the decision that created the most angst over whether the Supreme Court is out of touch with the people is the decision that actually referred a contentious issue back to the democratic branches of government:
While there have been many far-reaching and consequential decisions by the high court and accusations on both sides of politicization, especially in recent decades, critics argue that the Supreme Court’s current trajectory is running outside the American mainstream.
“They have burned whatever legitimacy they may still have had … They just took the last of it and set a torch to it with the Roe v. Wade opinion,” Democratic Sen. Elizabeth Warren, of Massachusetts, told ABC News on “This Week” on Sunday.
But some experts interviewed by ABC News said the court is doing what it is supposed to do — operating detached from the pull of public opinion — even when that is deeply polarizing.
“I don’t think most people would want judges or justices making decisions based on what’s politically expedient, or politically popular. That’s what the legislative branch of government is supposed to do,” said Jared Carter, a professor of constitutional law and director of Cornell’s First Amendment Clinic.
If “most people” don’t already know that, it’s yet another indictment of American civics education. Of course the federal judiciary operates “detached from the pull of public opinion.” That is precisely why the Constitution has the president appoint judges to the federal bench and grants lifetime tenure. The other two branches serve at the pleasure of the voters, either directly (Congress) or slightly indirectly (the president, elected by states rather than direct popular vote).
What makes this so laughably ignorant — especially in a series called Democracy in Peril — is that the Dobbs decision actually enhances the public’s ability to control abortion policy. The Constitution does not grant any oversight by the federal courts except in matters that it specifically authorizes the federal government jurisdiction. Passing the abortion issue back to states and the legislatures moves it from the unelected and politically insulated federal judiciary to elected officials that are supposed to respond to the “pull of public opinion.”
Justice Samuel Alito reminded everyone of that explicitly in his Dobbs ruling:
Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.66 In the last election in November 2020, women, who make up around 51.5 percent of the population of Mississippi,67 constituted 55.5 percent of the voters who cast ballots.
Furthermore, Alito argued that the Casey decision attempted to follow public opinion rather than the Constitution and the law. The result made a contentious situation even worse, and made a hash of abortion law that required even more star-chamber policymaking by the judiciary:
The Casey plurality was certainly right that it is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach. But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. Cf. Texas v. Johnson, 491 U. S. 397 (1989); Brown, 347 U. S. 483. That is true both when we initially decide a constitutional issue and when we consider whether to overrule a prior decision. As Chief Justice Rehnquist explained, “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.” Casey, 505 U. S., at 963 (opinion concurring in judgment in part and dissenting in part). In suggesting otherwise, the Casey plurality went beyond this Court’s role in our constitutional system.
The Casey plurality “call[ed] the contending sides of a national controversy to end their national division,” and claimed the authority to impose a permanent settlement of the issue of a constitutional abortion right simply by saying that the matter was closed. Id., at 867. That unprecedented claim exceeded the power vested in us by the Constitution. As Alexander Hamilton famously put it, the Constitution gives the judiciary “neither Force nor Will.” The Federalist No. 78, p. 523 (J. Cooke ed. 1961). Our sole authority is to exercise “judgment”—which is to say, the authority to judge what the law means and how it should apply to the case at hand. Ibid. The Court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy and Lochner would still be the law. That is not how stare decisis operates.
The Casey plurality also misjudged the practical limits of this Court’s influence. Roe certainly did not succeed in ending division on the issue of abortion. On the contrary, Roe “inflamed” a national issue that has remained bitterly divisive for the past half century. Casey, 505 U. S., at 995 (opinion of Scalia, J.); see also R. Ginsburg, Speaking in a Judicial Voice, 67 N. Y. U. L. Rev. 1185, 1208 (1992) (Roe may have “halted a political process,” “prolonged divisiveness,” and “deferred stable settlement of the issue”). And for the past 30 years, Casey has done the same.
Neither decision has ended debate over the issue of a constitutional right to obtain an abortion. Indeed, in this case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives. This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise “raw judicial power.” Roe, 410 U. S., at 222 (White, J., dissenting).
We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.
That is the only legitimate role for the federal judiciary. Policymaking comes from the legislatures and the executive branches, both of which are accountable to voters. The Roe and Casey courts focused instead on policymaking, and not just in the claim of discovering the constitutional right to abortion but also in the “legislative” constructs in both decisions, perhaps especially Casey. Alito notes that the Roe decision was bad enough:
After surveying history, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee. This included a lengthy account of the “position of the American Medical Association” and “[t]he position of the American Public Health Association,” as well as the vote by the American Bar Association’s House of Delegates in February 1972 on proposed abortion legislation. Id., at 141, 144, 146 (emphasis deleted). Also noted were a British judicial decision handed down in 1939 and a new British abortion law enacted in 1967. Id., at 137–138. The Court did not explain why these sources shed light on the meaning of the Constitution, and not one of them adopted or advocated anything like the scheme that Roe imposed on the country. …
When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were “consistent with” the following: (1) “the relative weights of the respective interests involved,” (2) “the lessons and examples of medical and legal history,” (3) “the lenity of the common law,” and (4) “the demands of the profound problems of the present day.” Roe, 410 U. S., at 165. Put aside the second and third factors, which were based on the Court’s flawed account of history, and what remains are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests. The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body.
The promulgation of such policy in a self-governing state should come from elected officials, not appointed judges. Alito and the Dobbs majority returned the court to its entirely proper constitutional role of judging on the law rather than on public opinion. And if it hadn’t been for the mischief of previous courts in usurping the legislative role meant for Congress and the states, none of this would be surprising, and more than “some” experts would recognize it as such.
Update: If ABC News wants to see how democracy got imperiled, perhaps they should take this lesson from Justice Neil Gorsuch in a footnote from West Virginia v EPA.
Justice Gorsuch dropped a footnote to the opening paragraphs of his concurrence in the far reaching 6 justice majority in West Virginia v EPA, one sure to upset progressives who trace their big government roots back to Woodrow Wilson: pic.twitter.com/NKeoOuVlFp
— Hugh Hewitt (@hughhewitt) July 1, 2022