2 years ago
Suddenly, Americans live in a country where they have a constitutional right to carry a gun in public but have no right to control their own reproductive choices. Both outcomes flow, allegedly, from the Constitution. But the idea that there is some sort of mechanical linkage between certain of its provisions and the Supreme Court’s opinions is false. Both decisions, on guns and abortion, rest on contestable moral and political choices — and the court’s resolution of those choices in turn depends not just on the justices, but on the strategic choices of both the Republican and Democratic parties.
The GOP apparatus has skillfully stocked the court over the years with justices touting an “originalist” approach to the law. This has a patina of legality and constraint, but ultimately allows justices to track closely with Republican policy ends. Meanwhile, the Democrats who now control the White House and Congress offered no countervailing pressure on the court, allowing its conservative majority to act without fear of consequences.
The opinions in Bruen and Dobbs alike interpret a provision in the Fourteenth Amendment that was enacted to resist the so-called Black Codes, which were promulgated across the South to squelch the freedoms of Black people after the Civil War. The drafters and ratifiers of the Fourteenth Amendment were primarily concerned with chattel slavery and its legacies. A consistent application of the court’s “originalist” method therefore would potentially find neither a right to a firearm nor a right to abortion in its folds. Neither is mentioned, after all; and neither is obviously pertinent. How did the court come to find a right to public carry, but not a right to abortion?
In truth, there is no express connection between that constitutional provision and either of last week’s decisions. Bruen requires a decision to ‘incorporate’ the Second Amendment (which initially bound only the federal government) into the 14th Amendment’s Due Process Clause. It then asks one to ignore the existence of the first clause of the Second Amendment, which sets out a link to state militia service. It then demands a ruling that turns the militia-focused Second Amendment instead toward the (distinct and different) purpose of self-defense — an idea that emerged only alongside the resistance to school desegregation in the 1950s. And finally, it requires the court to selectively update the boundaries of the Second Amendment to cover all new firearms without updating for changes to the lethality and costs of new technologies. There is nothing predetermined about any one of these choices: They instead depend on a highly tendentious selection from the historical record.
Or consider parallel instances of selectively reading history from Dobbs: The majority justifies its overturning of Roe not only on the basis of American history but also on the work of the overtly misogynistic 17th century English jurist Matthew Hale. The justices had to choose to reach to Hale to interpret a constitutional amendment drafted in 1868. But the Bruen decision rejected precisely this kind of interpretive move when it declined to rely on evidence that “long predates” 1868. Why then is English law useful in Dobbs and sidelined in Bruen? The court doesn’t say. Why is the historical experience of Black men and women facing state violence relevant in Second Amendment cases, but the present-day increase in maternal mortality — disproportionately falling on Black people — not relevant in abortion cases? Again, silence.
Originalist judges make great hay of being bound by law. Yet their constitutional opinions in practice are shot through with moral and political choices disguised as historical narrative. This is not surprising: The Constitution is majestic in its generality. It leans toward inclusion and an enlargement of the American experiment. You cannot draw a straight line from vague words such as “liberty” to present-day outcomes without making fraught choices about which legal precedents count, or whose historical and contemporary suffering matters — and whose doesn’t.
Further, it requires a heroic act of self-deception to ignore the fact that the present court predictably breaks in one partisan direction when it comes to making these choices — whether in respect to abortion, gun rights, criminal justice, national security or climate change. But neither the Constitution nor a commitment to originalism as a method of interpretation produces this pattern. It comes instead from the majority’s subtle choices of whose voices to hear, which values to ignore, and how to exercise the inevitable discretion that riddles constitutional law — all in one predictably partisan direction.
Behind the present Supreme Court majority, of course, lurk partisan forces. Republican presidents and senators, and their allies in the Federalist Society and like organizations, of course are well aware of such discretion. They have skillfully parlayed the gap between originalism’s rhetorical appeal and the reality of necessary judicial choice to great effect. Roe’s demise in particular precisely indexes the success of first Sen. Mitch McConnell and then the Trump White House in shaping the court by alternatively delaying and accelerating appointments, and by choosing jurists with predictable views on abortion, guns, and the like. To be clear, there’s nothing constitutionally awry in this: The Framers’ decision to make judicial appointments a partisan process running through the presidency and the Senate largely gives them power to do this. They are simply following the partisan cues created by our increasingly polarized system with the tools the Constitution gives them.
But last week’s decisions also reflect the decisions of the Democratic Party. Empirical work in political science demonstrates that the Supreme Court has long modulated its opinions in light of the predicted reaction of the elected branches. That is, the court is embedded in the ebb and flow of politics. It responds, consciously or not, to its sense of which way the winds are blowing.
Given this, President Joe Biden and his administration made a crucial decision when it signaled a lack of interest in seriously considering reform to the Supreme Court. That was made clear through Biden’s own rhetoric along with the White House’s establishment of a massive, unwieldy and ideologically polyglot commission to study the Court’s role in public life. The design of that body squelched from the get-go any possibility of executive-branch pressure to the court. Democrats in Congress soon followed suit, with party leadership ignoring some progressive calls to overhaul the court.
By placing the issue of court reform on the backburner, Democrats changed the political environment for the court. This choice seemed to reflect a judgment that the justices were institutional players, committed to some effort at avoiding a comprehensive alignment with just one political party. We can never know if a different White House strategy would have led to narrower decisions than the sweeping, take-no-prisoners thunderbolts of Bruen and Dobbs. But it would equally be a mistake to think that those rulings flow from Republican Party decisions alone.
What now, then, for a court that seems exquisitely attuned to constituencies aligned to one political party, while largely deaf to the experiences and values of the other political party? As Justice Clarence Thomas’ concurrence in Dobbs suggests, its constitutional method combines the patina of rigidity with a practical elasticity to allow for wide-ranging social change. Skilled lawyers can conjure originalist pedigrees for a wide variety of legal claims. Republican politicians lose little if they leave contentious policy questions to the court.
So the key question is what Democrats will do: Despite the present economic malaise, will they be able to mobilize not just their base, but also independents disturbed by a partisan-aligned Supreme Court operating without obvious constraints? Will they be able to explain how the court’s awesome powers can be rendered once more compatible with the Constitution’s democratic impulse? On such questions rests far more than just the future of guns and abortion.
English (US)