Saturday, October 8, 2022
As the United States Supreme Court begins a new term, its approval among the public is alarmingly low. Whether driven by the Court’s recent decision in Dobbs v. Jackson Women’s Health, the fact that the justices’ decisions often conveniently coincide with their political beliefs, or the fact that the Court’s composition, rather a principled interpretation of the Constitution, seems to determine whether a right is fundamental, there can be no doubt that the Court’s legitimacy is at stake. Put simply, the Court is now viewed by many as a political institution, where constitutional meaning changes based on whether its current members are conservative or liberal.
So how can the Court’s legitimacy remain intact and the public’s confidence in the Court be restored?
Certainly not by expanding the Court, which is liberals’ way of saying that they want to put more liberal justices on the Court to reach outcomes that they like.
Certainly not by endorsing living constitutionalism, which basically means that the justices can manipulate or ignore the Constitution to reach decisions that comport with their subjective policy predilections. Certainly not by having an on-again, off-again relationship with stare decisis, in which the Court’s adherence to precedent depends on whether a majority of the justices are Republicans or Democrats.
And certainly not by listening to the media or, worse, academics’ criticism of the Court, which is as blatantly partisan and equally unprincipled as the Court it so consistently criticizes. Indeed, and quite amazingly, some academics have complained that they now struggle to teach constitutional law, stating that they are ‘traumatized’ by the Court’s recent decisions, which they view as partisan and “results-oriented.” Some have even asserted that decisions such as Dobbs “have unsettled the foundational premises of [their] professional lives,” left them “deeply shaken,” and required their “own personal grieving period” where they look to students to keep them “afloat in darker moments."
No, this is not a joke. Law professors actually made these statements.
Thankfully, Professor David Bernstein has called out this nonsense:
[T]he fact that the Court is solidly conservative, and the constitutional law professoriate overwhelmingly liberal or further left, is exactly the problem. In the past, the left could count on the Court for sporadic big victories: same-sex marriage, affirmative action, [and] abortion. Now they can't, so they have turned against the Court. We all know that left-leaning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while [Mark Joseph] Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article.
That’s because they are practically no conservative law professors in academia – or even the pretense of viewpoint diversity at many law schools.
In any event, how can the Court preserve its institutional legitimacy?
By embracing a more robust form of judicial deference. Put simply, the Court should not invalidate a statute unless it clearly violates a provision in the Constitution, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text. Thus, when the Constitution is ambiguous and subject to reasonably different interpretations, the Court should defer to the democratic process and not get involved. In so doing, the Court can reduce, at least to some degree, the perception that the existence of constitutional rights and the outcomes of cases depend on whether a majority of the justices are conservative or liberal.
Below are several examples of cases where the Court should have never intervened and where its intervention harmed its legitimacy.
1. National Federation of Independent Investors v. Sebelius
In National Federation of Independent Investors, the Court addressed whether the Affordable Care Act, including the individual mandate to obtain health coverage, violated the Commerce Clause, which gives Congress the broad power to regulate commerce. The answer to this question, particularly given the Clause’s broad language, is anybody’s guess, and reasonable arguments could be made in favor of and against upholding the Affordable Care Act. What is known is that both houses of Congress passed and the president signed this legislation. So why did the Court get involved? After all, given that reasonable people could disagree on the Act’s constitutionality, why didn’t the Court simply defer to the coordinate branches and democratic process? That’s anybody’s guess too.
Unfortunately, the Court intervened, and, in a 5-4 decision (predictably divided on partisan lines), the Court upheld most of the Act’s provisions. And Chief Justice Roberts, ostensibly concerned with the Court’s legitimacy, somehow determined that the individual mandate constituted a tax, not a penalty. This reasoning was, to put it mildly, troubling. If the Court was concerned with its legitimacy, it should have never heard the case.
2. Kennedy v. Louisiana
In Kennedy v. Louisiana, the Court addressed whether a Louisiana law that authorized the death penalty for child rape violated the Eighth Amendment’s prohibition against cruel and unusual punishment. To be sure, the Eighth Amendment, among other things, was intended to prevent the infliction of unnecessary pain when punishing convicted offenders and prohibit sentences that were disproportionate to the severity of the crime. Given this backdrop, the Eighth Amendment’s text, and the Court’s precedent, did the Louisiana law violate the Eighth Amendment?
Who knows. Reasonable jurists can – and did – disagree on this question. What we do know is that Louisiana passed this law democratically.
Accordingly, why did the Court get involved and, in a predictably verbose and wishy-washy 5-4 opinion by Justice Anthony Kennedy, invalidate the law?
3. Citizens United v. FEC and McCutcheon v. FEC
In Citizens United v. FEC, the Court held in a 5-4 decision that the First Amendment prohibited Congress from restricting independent expenditures by corporations, labor unions, and other associations. And in McCutcheon v. FEC, the Court held, in another 5-4 decision, that limits on individual expenditures to federal and state candidate committees violated the First Amendment right to free speech.
Did the Constitution compel this result? Of course not. The First Amendment protects, among other things, freedom of speech. But does giving money to a political candidate or committee constitute speech? And if so, is the government’s interest in ensuring that wealthy corporations and individuals do not unduly influence elections sufficiently compelling to justify a restriction on this speech? Yet again, reasonable people can disagree.
As such, why did the Court get involved and invalidate legislation that was designed to reduce undue influence by corporations and wealthy individuals in the electoral process?
4. Roe v. Wade
There is no need to discuss Roe in detail. Nearly all legitimate constitutional law scholars agree that Roe was a terrible decision. It had no basis in the Constitution’s text, was not inferable from any provision in the text, and was not rooted in history and tradition. Notwithstanding, in Roe, like in Griswold v. Connecticut, the Court invented an unenumerated right out of thin air, thus imposing the subjective values of nine unelected justices on an entire country. And the doctrine upon which Roe was based – substantive due process – was equally as indefensible.
The Court should have never gotten involved. It should have allowed the people to decide whether, and under what circumstances, abortion should be allowed. Although the Court corrected this error in Dobbs, the decision to overrule Roe, which had been the law for nearly fifty years and was affirmed in Planned Parenthood v. Casey, was troubling. Indeed, the only thing that changed since Planned Parenthood was the Court’s composition. Notwithstanding, the fact remains that Roe was the original sin and the product of the Court’s unnecessary meddling in the democratic process.
5. Clinton v. New York
In Clinton v. New York, the Court addressed whether the Line Item Veto Act of 1996, which authorized the president to repeal portions of statutes that had been passed by both houses of Congress (particularly spending provisions) violated the Constitution’s Presentment Clause. The Clause states in pertinent part that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”
The Line Item Veto Act, some argued, violated the Presentment Clause because it allowed the president to unilaterally and without Congress’s approval repeal specific provisions of duly enacted legislation. At the same time, however, Congress, on a bipartisan basis, passed the Line Item Veto Act to, among other things, reduce wasteful government spending. Given these facts, and considering the Presentment Clause’s broad language, was the Line Item Veto Act constitutional?
Certainly, reasonable people could disagree on this question. Thus, why not defer to the coordinate branches and to the democratic process? Unfortunately, the Court yet again intervened and, in a 6-3 decision, invalidated the Act. In so doing, it prevented Congress from addressing the problem of wasteful government spending.
6. Shelby County v. Holder
In Shelby County v. Holder, the Court invalidated Section 4(b) of the Voting Rights Act, which includes a coverage formula that determines which states (based on a history of discrimination) must seek preclearance before enacting changes to their voting laws. Importantly, in 2006 the Senate reauthorized the Act, including Section 4(b), by a unanimous vote.
Notwithstanding, the Court decided to get involved and, by a 5-4 vote, invalidated Section 4(b). But was it clear that Section 4(b) violated any constitutional provision? No. So why did the Court get involved? Why didn’t the Court defer to the democratic process and to the Senate’s unanimous vote to reauthorize the Act? Again, it’s anybody’s guess.
The above cases are just a sample of those in which the Court’s intervention was unnecessary and unwarranted. Unless a statute clearly violates a provision in the Constitution’s text, the Court should defer to the democratic and political process, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text.
After all, intervening in such circumstances makes the Court appear political and undermines its legitimacy. The Court’s decision in Dobbs highlights this problem. Although the Court was technically correct to overrule Roe, that doesn’t mean that it should have done so. Why? Because the only thing that changed between Roe and Planned Parenthood v. Casey, where the Court reaffirmed Roe’s central holding, was the composition of the Court. Specifically, the Court in 2022 had more conservative members than in 1992, and its decision sent the message that the existence of constitutional rights depends on whether the Court has a majority of conservative or liberal members. It's difficult to understand how Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barret could not grasp this fact.
To restore its legitimacy, the Court should defer more often to the coordinate branches and adhere to stare decisis on a more consistent basis. That can only happen if the Court stops invalidating laws that do not clearly violate the Constitution, refuses to create rights out of thin air, and does not reverse precedent simply because it has a majority of conservative or liberal jurists.
 See Jeffrey M. Jones, Supreme Court Trust, Job Approval at Historic Lows, (Sept. 29, 2022), available at: Supreme Court Trust, Job Approval at Historical Lows (gallup.com)
 No.19-1392, 597 U.S. , available at: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
 See, e.g., Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sep. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time
 Mark Joseph Stern, The Supreme Court is Blowing Up Law School, Too (Oct. 2, 2022), available at: Supreme Court: Inside the law school chaos caused by SCOTUS decisions. (slate.com)
 See David Bernstein, Why Are Constitutional Law Professors Angry at the Supreme Court? (Oct. 3, 2022), available at: Why Are Constitutional Law Professors Angry at the Supreme Court? (reason.com) (emphasis added).
 567 U.S. 519 (2012).
 554 U.S. 407 (2008).
 558 U.S. 310 (2010).
 572 U.S. 183 (2014).
 410 U.S. 113 (1973); 381 U.S. 479 (1965).
 524 U.S. 417 (1998).
 U.S. Const., Art. I, Section 7.
 570 U.S. 529 (2013).