In the 1973 abortion case, not today, the justices overstepped their boundaries and made their institution political.
by David B. Rivkin, Jr. and Jennifer L. Mascott, The Wall Street Journal, June 24, 2022
The most anxiously awaited Supreme Court decision in decades is also the least surprising. An act of institutional sabotage leaked Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization nearly eight weeks in advance. On Friday a five-justice majority definitively overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), affirming states’ authority to regulate abortion. In so doing, the court reclaimed its legitimate constitutional role and signaled a willingness to re-examine precedents that strayed across the line between law and policy or misconstrued important constitutional provisions.
But the draft opinion’s leak damaged the court, which requires the justices to collaborate in confidence. The leaker’s purpose seems obvious: a last-ditch effort to mobilize public opinion and activist protesters in hope of intimidating the justices into rethinking their position.
This breach was shocking but probably shouldn’t have been surprising. In the past several decades, and particularly since President Trump began appointing justices, the court has faced mounting opposition, including pointed threats against individual justices by members of Congress. Supreme Court nominations, especially by Republican presidents, have become ideological and partisan wars, sometimes featuring ugly uncorroborated allegations of personal misconduct. Sending mobs to threaten justices and their families at home was only the latest escalation.
These attacks on the court are part of a concerted campaign to undermine the legitimacy of American institutions and norms and the Constitution itself. The court’s most vociferous critics either don’t understand its proper role or, more likely, reject it. This was evident in the national debate over the leaked draft of Justice Alito’s opinion, which focused entirely on the policy and political implications of overturning Roe rather than its legal basis.
In fact, Dobbs imposes no policy. It simply states that abortion is not among those individual rights protected by the federal Constitution. The result is that this contentious issue has been returned to the state legislatures, which had primary responsibility for setting abortion policy until the court imposed its own views on the country in 1973.
It was at that time, and not today, that the justices overstepped their boundaries and ensured that the court would become the focus of political contention for half a century. Dobbs belatedly corrects that error by recognizing that the federal judiciary’s constitutional role is merely to decide cases and controversies, based upon the established tenets of law grounded in the Constitution, federal statutes and common law. Policy decisions properly belong to the elected branches of federal and state government.
Congress’s approval ratings are abysmally low, as are President Biden’s, and some critics have claimed the justices should be concerned that the Supreme Court’s ratings are declining too. But the federal judiciary is a countermajoritarian institution. The court does its most important work when it renders decisions that are unpopular but legally correct.
It bears emphasizing that Dobbs’s detractors lob objections that don’t reflect the true nature of the opinion. They claim the justices have shown a disregard for stare decisis, the doctrine of respecting precedent. In fact, the decision relies on the precedent in Washington v. Glucksberg (1997), which concluded that there is no constitutional grounding for any claimed right that is neither enumerated in the Constitution nor deeply rooted in the nation’s history and tradition.
Dobbs also marks a path toward restoring the constitutionally prescribed diffusion of powers among governmental branches, undergirded by a system of checks and balances. This uniquely American structure of government is the primary safeguard of individual liberty.
In the coming years, the court will face a series of momentous opportunities to perform its constitutional responsibilities. It will be called on to continue re-examining Congress’s authority to dictate state policy by attaching strings to funding measures. And in a series of cases over the past 30 years, the justices have issued rulings restoring some of the proper balance between the federal government and the states by reaffirming that there are limits on Congress’s authority to regulate interstate and foreign commerce. Those limits may now be tested depending on whether Congress decides to refederalize abortion by legislation either requiring or limiting its availability.
The court will also face key questions involving the relationship between Congress and the executive branch, such as the permissibility of broad congressional delegations of policy-making power to regulatory agencies and statutory limitations on the president’s constitutional duty to manage federal bureaucracies.
The extent to which executive agencies can adjudicate matters involving significant private-property and liberty interests without close judicial supervision is another question that the court likely will revisit. The justices are repeatedly being asked to resolve questions about whether agencies have overstepped their statutory authority to regulate, particularly in areas involving major policy questions. In the oft-repeated words of Chief Justice John Marshall : “It is emphatically the province and duty of the Judicial Department to say what the law is.” The burgeoning federal bureaucracy too often arrogates this power to itself, often overlooking statutory and constitutional constraints.
The Supreme Court’s legitimacy therefore is of utmost importance. The decision in Dobbs suggests a majority committed to the court’s proper role, which is to decide cases independent of political and popular winds.
Mr. Rivkin practices appellate and constitutional law in Washington. Ms. Mascott is an assistant professor at Antonin Scalia Law School and a former clerk for Judge Brett Kavanaugh and Justice Clarence Thomas.