Mark Rush, professor of politics and law at Washington and Lee University, contends that the Supreme Court erred by ignoring practical wisdom in favor of doctrinaire logic in the Dobbs v. Jackson Women’s Health Organization opinion...
In Terminiello v. Chicago, Justice Jackson famously commented that the constitution “is not a suicide pact.” His point was in response to the Court’s decision to invalidate Chicago’s disorderly conduct conviction of Arthur Terminiello, who had given a speech that threatened to breach the peace. Writing for the Court, Justice Douglas rejected Chicago’s assessment that Terminiello’s speech comprised a “clear and present danger” to the peace. In response, Jackson argued, “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” In the Dobbs v. Jackson Women’s Health Organization decision, the Supreme Court once again placed doctrinaire logic above practical wisdom as the majority looked to resolve a logical flaw in the Court’s jurisprudence while ignoring the impact the decision would have on the country.
There remains no question that Roe was a revolutionary decision. The Court created privacy and abortion rights with virtually no constitutional basis for doing so. It could, just as easily, have left abortion to the police power of the state. However, this would have been dreadful and unjust for women and would have left them subject to the inconsistent whims of 50 different legislative majorities. Instead, the Court did the wise thing by giving women the freedom to control their reproductive rights and creating a broad, but uniform standard for assessing when abortion could be restricted. Roe simply, mercifully and wisely placed limits on the degree to which women seeking abortions would have to flee and avoid some states while seeking refuge in others. It ensured that women could move and live freely across the country as Americans—not as residents of particular states. The same reasoning underpinned the Court’s decision to end segregation in Brown v. Board of Education.
It is reasonable to assume that the subsequent half century of political battles would have ensued regardless of how Roe was decided. Abortion is a divisive political issue about which there is no national consensus. Critics contend, therefore, that the Court should have backed away and let the people, through their elected representatives, resolve the abortion issue deliberatively through the democratic process. In this regard, the Court did overstep its bounds in 1973 by taking an issue from the people’s hands and essentially imposing a vision of liberty from above instead of letting the people develop it and arrive at a consensus from below.
But calling democracy “deliberative” is euphemistic for calling it “slow,” “messy” (ask Bismarck about sausage and legislation), and inevitably zero-sum because it creates winners and losers as it generates consensus not about what is true or just, but about what is favored by the majority. This is essentially James Madison’s vision of the democratic process. Critics of decisions such as Roe allude to Madison to justify their condemnation of judicial activism at the expense of popular rule. But the marketplace of ideas and the democratic process favor the politically powerful. Another founder, Alexander Hamilton, knew this, and he celebrated the authority of the Court to add a corrective to the throes of a democratic process that catered more to the politically adept than to the just. Yet while Hamilton celebrated the Court’s capacity to check the elected branches, he maintained that courts were the least dangerous branch of the government.
The Dobbs Court ignored this as it focused on doctrinaire logic and pretended to be much more powerful than it is. In seeking to remove Roe’s logical blemish from its far from perfectly logical history, the Dobbs majority delivered its opinion and left for summer vacation while precipitating chaos in the constitutional system. To the extent, as Jackson noted, the Court should not interpret the Constitution as a suicide pact, it is responsible for the impact of its decisions. To pretend otherwise is to suggest that the Court is separate from the constitutional system. It is not. In the same way that it has chastised Congress for passing vague laws that would wreak havoc in the constitutional system, the Court cannot escape responsibility for decisions that render constitutional understanding unclear. Yet Justice Alito suggested otherwise as he looked to wash the Court’s hands of the abortion matter once and for all:
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…
Already, we see that the nation could break down into balkanized zones where abortion is and is not allowed. No doubt, all levels of the judicial system will clog as litigants flood courts with challenges to the 50-state free-for-all that will ensue. An already polarized country will polarize further. This is the Court’s doing.
In his opinion, Alito makes two disingenuous points. He contends 1) that the Court has no authority to decide issues that are properly the province of the elected branches and 2) argues that, with Dobbs, the abortion issue is now, properly, the province of the elected branches. The first point is uncontestable. In the constitutional system of separated checking powers, the scope of the Court’s power ends where those of the other branches begin. But in issuing a decision, the Court has never had the capacity to end debate or assert its power at the expense of the other branches. It is one among equal branches; it is not primus inter pares.
Granted, in Roe, Justice White lamented the decision as an “exercise of raw judicial power.” In seeking to affirm White’s lamentation, Justice Alito cites Alexander Hamilton in Federalist 78 to remind us that the Court possesses neither the sword nor the purse. It should exercise only judgment that, Alito says, is “the authority to judge what the law means and how it should apply to the case at hand.” That, however, is the only power the Court has ever had. Congress has the same power to check the Supreme Court that it has to check the president. It does not happen often, but when Congress wishes, it can essentially reverse a judicial decision. That’s why we now have the Religious Freedom Restoration Act.
Accordingly, the Court has never and can never take away the power of Congress to regulate abortion (or anything else). Of course, Congress may choose not to respond to a judicial decision. However, that does not imply that it has lost the power to do so. Congress never reversed Roe, despite the fact that in the 50 years since, Democrats and Republicans have controlled both houses and the presidency at different times. Congress could have passed legislation to extend or overturn Roe. It chose not to do so. It is not cynical to argue that as long as Roe was law, elected officials could disingenuously “blame” the Court for taking abortion out of their hands. This was, in fact, the practical politics of self-preservation for members of Congress. Through Roe, the Court provided “cover” for members of Congress who otherwise would have faced backlash from their constituents. The Dobbs opinion contends that constitutional democracy requires elected officials to deal with those constituents. According to Dobbs, had Roe stood, democracy would have been undermined.
That is a reasonable and important concern that cannot be dismissed in an era where, since the election of Donald Trump, the chattering classes have been preoccupied with the demise of democracy. But, congressional inaction is democratic inaction. If the balance struck by Roe and, later, Planned Parenthood v. Casey was OK by Congress, it was not necessary (and would have been foolhardy) for Congress to overrule those decisions simply to reinstate them by subsequent legislation. Congressional inaction is not congressional submission to another branch.
The system of checks and balances generates constitutional ends through action and inaction. Despite critics’ doctrinal concerns about their underlying logic, the constitutional system accepted and operated under—however tensely and uneasily—the constraints imposed by Roe and Casey and tolerated by the other branches. The constitutional system worked. States generated new laws and litigants challenged them in courts. Over 50 years, the original Roe decision evolved in a manageable, however messy, manner. Managing controversy is what constitutional democracy and good government are all about.
In Dobbs, the Court willfully upset that balance, exacerbated the tension, and precipitated chaos under the pretense that the abortion controversy can and will be resolved through the democratic process. This is fiction. When speaking to the Southern Republican Leadership Conference in March 1990, Newt Gingrich himself acknowledged that in a democracy, leadership cannot pretend to resolve conflict—it can only be managed. In Roe, the Court offered the trimester system as a scheme for conflict management. It was not perfect—but neither are other judicial artifices such as the clear and present danger test, the definition of a case or controversy or the one person, one vote rule. In Dobbs, the Court precipitates controversy and chaos shrouded in the guise of disingenuous deference to a zero-sum political process from which it pretends to be isolated. In Terminiello, Justice Jackson feared that the Court might “walk into a well from looking at the stars.” In Dobbs, the Court pushed the country over a cliff while leaving for summer vacation. This was not politically or constitutionally necessary. Nor was it, despite the majority’s protestations, in keeping with the Constitution.
The Constitution is more than the Court. It is more than any one amendment. It is a system designed to “establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” As the Court heads away for summer, it has undermined this broad charge in the name of a narrow vision of doctrinaire logic applied to one section of that system. In so doing, it has forsaken its charge to protect and support the entire constitution and imperiled domestic tranquility and the general welfare.
Mark Rush is the Waxberg Professor of Politics and Law and director of the Center for International Education at Washington and Lee University. His current scholarly work and interests include presidential powers over foreign affairs, separation of powers, international politics, judicial activism, elections and democratic reform, civic education, higher education and law, and law and technology.
Suggested citation: Mark Rush, Dobbs and the Supreme Court’s Suicide Pact, JURIST – Academic Commentary, June 27, 2022, https://www.jurist.org/commentary/2022/06/mark-rush-dobbs-supreme-court/.
This article was prepared for publication by Hayley Behal, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to her at firstname.lastname@example.org
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