I’ve been watching the discourse following Monday’s revelation that Samuel Alito authored a majority opinion that overrules Roe/Casey and declares that the nation’s abortion laws should not be established by the Supreme Court. This discourse has generated a few thoughts that I want to jot down below in a brief post.
An Unelected, Anti-Democratic Institution
Whenever the Supreme Court makes a bad constitutional law decision, one natural reaction is to call out the unelected, anti-democratic, and elitist nature of the institution. This move almost always works because, when the Supreme Court makes constitutional proclamations, it is almost always invalidating a law or action made by elected officials.
But in this unique situation, the argument does not work because it was Roe/Casey that invalidated laws made by elected officials and, by overturning Roe/Casey, the Alito opinion actually returns the question to elected officials.
Court-Packing Does Not Solve The Problem
Another natural reaction to a bad Supreme Court decision is to say that we need to pack the court so that it is no longer Republican-dominated. But the people who say this don’t seem to be very thoughtful about how the Supreme Court would work in a post-court-packing world.
After court-packing becomes a thing, the Supreme Court will always be controlled by whichever party last held the Senate and the President. When Democrats last held the Senate and the President, the Supreme Court would be controlled by liberal judges who uphold constitutional abortion rights. When Republicans last held the Senate and the President, the Supreme Court would be controlled by conservative judges who strike down constitutional abortion rights.
So in this world, abortion rights would move in tandem with electoral outcomes, which is also how abortion rights will work if Roe/Casey is overturned by the Supreme Court.
The Permanent Supreme Court
If packing the court doesn’t solve the problem, then would dutifully voting and campaigning so that you can win elections, replace conservative judges with liberal judges, and reinstate Roe/Casey work? Probably not.
The thing about the modern Supreme Court that the discourse does not seem to have digested yet is that the judges have mostly figured out that they can pick the ideology of their successor by strategically retiring. You do still see some occasional deaths while in office, either due to surprise or stubbornness, but, by and large, judges these days retire when they know they will be replaced by someone who thinks like they do. And these kinds of strategic retirements are likely to be even more prevalent in the future.
This means that, unless Democrats can figure out how to string together a nearly unprecedented string of one-party rule that makes it impossible for conservative judges to find a window to strategically retire in, the current partisan balance of the Supreme Court is, more or less, permanent.
Judicial Review
Another liberal reaction to the Alito opinion has been to correctly point out that judicial review — the process by which the Supreme Court declares laws unconstitutional — is not even in the constitution. But it is unclear what liberals who say this think it means in this case.
I have long thought that judicial review should not exist and that the court should not have the power to declare laws unconstitutional. This is apparently a fringe belief in US politics, especially among liberals who seem to think that allowing policy items to be enacted through constitutional pronouncements will mostly favor them.
They are of course mistaken: judicial review can enact conservative policy just as easily as liberal policy. The Supreme Court used judicial review to create a constitutional right to abortion in Roe, but, if it wanted to, it could also use judicial review to create a constitutional ban on abortion (see Germany in 1975).
In general, I think judicial review is more often used for bad than for good and also think that, from a pure governmental process perspective, it makes no sense to give this kind of power to a nine-person legislative body of philosopher-kings that, like real kings, mostly select their own successors.
But, in this narrow case, the practical upshot of Alito’s opinion, which is that abortion laws will no longer be established by the Supreme Court, is also the practical upshot of ending judicial review. So pointing out that the Supreme Court shouldn’t even have the power of judicial review does not really work as a criticism of it.
Legitimacy
Many conservatives have said that the leaking of Alito’s draft opinion is a blow to the legitimacy of the court. But it is hard to understand what exactly they could mean by this. Why would seeing a draft opinion make the Supreme Court seem illegitimate anymore than seeing a draft bill makes Congress seem illegitimate? The content of Alito’s draft is explosive but it’s otherwise just a normal opinion that the public is used to seeing published by the court. Unlike reports that the judges frequently engage in horse-trading when making decisions, a practice that makes it extremely clear that the court is operating as a conventional lawmaking body, nothing particularly damning about the institution was revealed in this leak.
The other strange thing here is that conservatives clearly do not think the Supreme Court is a legitimate institution to begin with. The last few decades of conservative writing has consistently claimed that the Supreme Court just cynically constitutionalizes the political objectives of contemporary liberal movements, indicating that the whole interpreting-the-constitution enterprise is a joke. In fact, it seems to be this view that the Supreme Court is illegitimate that has mostly motivated the cynicism with which the modern conservative legal movement approaches the courts.