Following the demolition of Roe v. Wade and its invented right to abortion, Democrats have raged that the decision killed the Supreme Court’s legitimacy. Sen. Elizabeth Warren (D-MA) described the 6-3 majority as having “burned” it.
Such statements usefully point to the truth, which lies in the opposite direction. Far from delegitimizing the Supreme Court, the ruling in Dobbs upholding Mississippi’s abortion restrictions re-legitimizes it, rescuing it from decades of jurisprudential impropriety. The Left hates the loss of the abortion rights, certainly, but no more than it detests the broad implication that the court, as currently composed, will restrain itself and the other two branches of the government when they overreach.
Contrary to what the Left says, the Supreme Court delegitimizes itself only when it slips its constitutional anchor and sails into oceans of policymaking, politics, and ideological preferences that are meant to be decided democratically and are not sanctioned by either history or America’s ratified founding documents.
The more unmoored the court is, the better it suits Democrats, who have long regarded the Constitution as an intolerable impediment rather than the proper foundation on which to build and maintain a sustainable political culture. The Left and its party cannot explicitly kill the Constitution, so instead, they have argued it is a “living” thing that can mutate beyond recognition to mean whatever they want it to mean.
Most people would say a defining feature of any law is that it has a consistent meaning. How else could it be fair, and how else could we have rule of law? A Supreme Court that hews to the original meaning of the Constitution thus commands public respect in a way that would be impossible if nine justices bent constitutional guidelines to suit their own preferences or those they believe the public to hold. That is what politicians are elected to do. The Supreme Court will gain respect to the extent that it isn’t a handmaiden to any ideology for which politicians fail to drum up popular support.
The need for the Constitution, and any law, to remain constant in meaning also falsifies the claim — it comes from both parties, but more from Democrats — that the court should be roughly evenly divided between liberals and conservatives because the country is.
This reflects the dangerous idea that the court should be a political body, but it also gets another thing backward. A bench on which there is an equal number of liberals and conservatives, with swing votes from one or two justices in the middle, is a court that will tack back and forth from one constitutional position to its opposite as judicial nominations from successive presidents are confirmed.
Proponents like to talk of a “balanced” court because balance sounds reasonable and moderate. But balance is inherently unstable — think of a teeter-totter — and a little new weight at either end tips it fully one way or the other. A bench on which there is, by contrast, a clear majority of justices who are originalist (on the Constitution) and textualist (on statute) is one that cannot be tipped toward improper decisions made on political or ideological grounds. A balanced court tipping to and fro makes plain that laws don’t have consistent meanings and will be manipulated from one year to the next. How can such a court command public respect and legitimacy?
Thus, the Dobbs decision — admitting what even abortion-supporting constitutional lawyers, including the late Justice Ruth Bader Ginsburg, acknowledged, that Roe v. Wade was weak and contorted legal reasoning — courageously admits a grave institutional error and signals that the institution will correct itself when it has gone awry.
It is partly for this reason that Michael Stokes Paulsen, writing for Public Discourse, describes Justice Samuel Alito’s Dobbs opinion, and its backing by another five justices, as “a rare act of judicial courage” and holds out hope that it is “potentially transformative of American society, for the better.”
Imagine, a Supreme Court that won’t arrogate political decisions to itself or, to put it another way, that declines to save elected politicians the trouble of persuading voters!
There is talk of President Joe Biden trying to counteract Dobbs with executive orders, of building abortion clinics on federal land within red states, and of codifying Roe into federal law. None of these efforts seem likely to go far and should be seen as the spasms of an enraged loser. Most likely is that beneath the rage and poison of our politics, politicians seeking election will now increasingly have to persuade a democratic majority of the merits of their agenda.
We’ll have a re-legitimized Supreme Court to thank for that.
