The Banality Of Being Wrong
Posted on June 9th, 2009
by Daniel Larison |
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Setting aside the banal fact that the judicial system is a part of our democratic process, there is a clear, straightforward and well-known way to overturn Roe v. Wade– pass a constitutional amendment criminalizing abortion. ~Freddie deBoer
It’s a curious thing about such “banal facts”–sometimes they aren’t facts at all, but rather baseless assertions. The judiciary is part of our constitutional, formally republican system, but it is the one branch of government that is as far removed from “the democratic process” as can be. All of the things that we are supposed to prize about the judiciary–its independence, its (theoretical) adherence to the rule of law and its (theoretical) safeguarding of constitutional protections against the other branches–are not only undemocratic, but they are sometimes explicitly anti-democratic. It is set up this way in order to prevent ochlocracy and passions of the moment from destroying fundamental constitutional protections in fits of panic or anger. What Roe does, as Freddie knows full well, is to ground abortion in one of these fundamental protections, which therefore cannot be infringed upon by statute or referendum. To say that Roe doesn’t take the question out of the democratic process would be to say that the right that the Court discerned, or rather imagined, in 1973 isn’t considered legally to be the same kind of constitutionally protected right as any of the others. However, to admit that a constitutional amendment is required to make abortion illegal is to acknowledge that it is the same, and it is to grant that the right guaranteed by Roe is outside of anything like the normal democratic process as constitutional rights would have to be. If constitutional rights are still potentially revocable as part of the constitutional process, that isn’t what anyone means when he says that something is or isn’t subject to the democratic process.
Judges are not wholly unaccountable to the people, but in practice federal judges are never impeached for their rulings. This would be seen as political interference and a violation of the judiciary’s independence. In many cases, this arrangement is probably better than many alternatives, but like any ultimately unaccountable institution the Court can abuse and has abused its power, and it can do so in no small part because of the power it already arrogated to itself. Even to the extent that new appointments to the Court indirectly reflect the views of the majority at a given moment, the judges in question are expected not to serve as reliable representatives of their faction or ideological clique, but are instead supposed to respect precedent. This is particularly true of conservative judges, and it is especially true when it comes to their views on Roe. Even in those limited, roundabout ways that elections might influence the composition of the Court and affect how the Court rules on cases related to abortion, elections have their smallest effect on this specific question. Freddie knows all of this, so who is he trying to kid?
The amendment process is a somewhat indirectly democratic means to make changes to that system. This makes the amendment process a slow, drawn-out, but nonetheless democratic remedy to perceived flaws in the system. The amendment process is extremely slow and arduous because there was once a quaint idea that dramatic changes in the power and scope of government could and should only be achieved through this process. Likewise, there was an assumption that there needed to be numerous obstacles to amending the fundamental law to make it more difficult for majoritarian tyrannies to strip people of their constitutional protections. Once the Court began discovering rights, or, if we want to be less pejorative, extending the protections of existing rights in new ways, what had once been within the power of state legislatures and electorates to regulate as they saw fit was placed behind a series of huge obstacles that cannot be overcome without the building up of super-majorities throughout the entire country in favor of a certain position. That would all be well enough if the right in question were not so constitutionally dubious and morally outrageous, since this process is supposed to be extremely difficult and it is supposed to require the support of most of the people, but the so-called right we’re talking about is both of these things.
Each time someone proposes a federalist compromise on this question to return the issue to the individual states, defenders of the status quo insist, as one might expect they would, that the guarantees of constitutional rights cannot be left up to the states and the people, because they understand that returning the question to the political sphere and the democratic process would lead to at least some restrictions that they argue are violations of fundamental protections. For the most part, it seems to me that supporters of Roe are usually quite proud of the fact that the “right to choose” is no longer subject to the democratic process, and they are frequently alarmed by anything that threatens to return it to its former status. One cannot argue that there is both a constitutional right at stake and also argue that the entire issue remains subject to the democratic process.
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16 Responses to “The Banality Of Being Wrong”
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Once the Court began discovering rights, or, if we want to be less pejorative, extending the protections of existing rights in new ways, what had once been within the power of state legislatures and electorates to regulate as they saw fit was placed behind a series of huge obstacles that cannot be overcome without the building up of super-majorities throughout the entire country in favor of a certain position
Even to the extent that new appointments to the Court indirectly reflect the views of the majority at a given moment, the judges in question are expected not to serve as reliable representatives of their faction or ideological clique, but are instead supposed to respect precedent. This is particularly true of conservative judges, and it is especially true when it comes to their views on Roe
I think these points get to the heart of the matter. I found Andrew Sullivan’s uncritical embrace of David Souter troubling and very much in line with what is described here: a world where conservative judges are those that simply rubber-stamp precedent, while their counterparts set it. Then we have people like Freddie reminding us that if we simply don’t like the precedent, rally the nation to change it through an ammendment process that was specifically designed to prevent a rallying nation from changing it.
The Supreme Court has been creating its own version of the Constitution from the beginning. Marbury v, Madison is not in the Constitution, for starters. If Marbury is constitutional in principle, then so is Roe. Roe is just one of many, many judicial interpretations that are not explicitly in the Constitution. Not liking the outcome of one such case is not a reason to dislike the principle of judicial independence and power. The ability to override the court through Constitutional amendent is certainly a lengthy process, but that’s not a problem with a long-term issue like abortion rights. It’s been 36 years, plenty of time to gather support for an amendment. We’ve had the GOP controlling congress and the Presidency for a number of those years, and they made no attempt to pass a constitutional amendment banning abortion. It only takes a majority vote in the house and senate to get the ball rolling. But it never happened? Why? Because not even the GOP actually wants to change the current policies. At least they don’t want to take any responsibility for the act. So instead they just continually blame the courts, and want the courts to overule the courts, which rarely, rarely ever happens. The way to change these things outright is to win election, and win enough votes in congress, the senate, and state legislatures to put through an amendment. But the GOP doesn’t actually want that to happen, so they don’t even try. They just want the votes of the pro-life base. It’s understandable that the pro-life base is frustrated, but they’re frustrated because they don’t have enough votes to overturn Roe democratically. Just as there’s a million Supreme Court cases progressives or other marginal groups would love to overturn by amendment but can’t, because they don’t have enough electoral support.
And again, it’s strange to hear federalism invoked in regards to Roe. The whole point of Roe is that the government does not have an absolute power to regulate individual personal lives, and what is most personal and private in those lives. It’s not so much an assertion of an individual right to an abortion as placing a limit on the government’s power to insert itself into the personal lives of citizens. It’s a case of the federal government limiting itself and states, not of the federal government creating new rights. It’s logic is one of recognizing the inborn, inherent rights human beings to live without limitless governmental intrusion. I would think that most right-wing libertarian types would agree with that logic – except, of course, when they don’t like where it leads. And that’s why the judiciary can do these things – they follow the legal logic or where our constitutional principle lead. We may not always like the outcome, but there is a remedy. In this case, I would oppose the remedy, both in the specifics of abortion, but also on principle, that I dont’ think we need to increase the ability of government to intrude on people’s private, personal lives, but to limit it even further. It’s surprising how that principle can be overriden in so many people’s politics simply because they don’t like certain specific outcomes.
Over in the comments, I have been surprised to learn that so many people are apparently unhappy with one of the fundamental elements of the America system, judicial review of questions of constitutionality that is binding to all of our states. Odder still, they are unhappy precisely and only with this system as it relates to abortion. They don’t agitate, for example, against the DC gun ban being overturned, even though it absolutely, directly violated the sovereignty of Washington DC.
Now, you can say that the DC gun rights verdict was better argued or was founded on sounder legal thinking. But that is an argument about content, not process. My fundamental point is merely this: that Ross, and many of Roe’s antagonists, want to make the issue about process rather than about content. He objects that Roe v. Wade is somehow removed from the democratic process, and implies that it is in a way that is untrue of other Supreme Court decisions. That isn’t true; Roe v. Wade intrudes on democracy only and exactly to the same degree that any other Supreme Court case does. Just as with the DC gun ban. So while I invite Ross to argue against the content of Roe, I am tired of those who oppose abortion speaking as though Roe is a uniquely disenfranchising case. It only tramples democracy to the degree that all rulings on constitutionality by the Supreme Court do.
To those who are insisting that Roe v Wade has upset the democratic process in the United States, I insist back that they apply that thinking to any and every Supreme Court case that has overruled state or local statute.
But Freddie: Ross wasn’t, at least in this context, using the undemocratic character of Roe to argue against the ruling. He was just observing that one of the problematic consequences of this state of affairs is the obsessive focus on late-term abortions in our political discussion, and that opening up further legal space for democratically-imposed restrictions on abortion would change this.
Often, when the Supreme Ct. overrules a statute, it looks to a specific clause in the Constitution or in the Bill of Rights. Conservative reaction to _Roe_ has always been formed by the notion that no such specific guarantee of reproductive freedom can be found in the text of the Constitution. Moreover, even if one does find such a guarantee somehow, certain aspects of the decision such as the convoluted and impractical trimester scheme, seem to involve a decison making and fact-finding process better suited to legislative action than to the judiciary.
The problem is that Ross fundamentally misunderstands the purpose of Roe which Daniel, while obviously disagreeing with it, elucidated quite clearly, and conrad further clarified; the Court has found to a constitutional right to privacy, one which allows for abortion not so much in a positive sense, though Roe clearly elucidates the consequences of their position, but because of the restraint placed upon government to interfere with private medical choices, and indeed, larger privacy issues.
Its for this same reason why talk of gay marriage being debated “democratically” is a non-starter for most; it is viewed, rightly or wrongly, as a right, one upon which the majority cannot invalidate. Again, people who disagree with the process rather than the substance of such decisions obviously misunderstand the whole concept of rights and how the judiciary is supposed to protect them. You can argue there is no right to agay marriage, which is fair, but you can’t argue that the court does not have a right to enforce it if it does exist. As indicated by Marbury v. Madison, it very clearly does.
The reliance on _Marbury v. Madison_ is completely misplaced. _Marbury establishes the power of judicial review but not the Court’s power to imply personal rights absent some textual support.
I cite Marbury because it is the primal example of the Court finding a principle or right in the constitution which isn’t explicity written there. In this case, it’s a right the Supreme Court itself has to invalidate federal and state laws it deems unconstitutional. Roe v. Wade can’t be considered in violation of this principle, if judicial review itself is not in violation of it. In other words, If Marbury and a plethora of further cases establishes that the supreme court can find governmental rights and powers not explicity in the constitution, it can also find limits to those governmental powers as well. It does so all the time. There’s nothing special about Roe in that respect. As stated, it’s actually a conservative, anti-government ruling, limiting the power of government to intrude on an individual’s personal and private life. It’s not a ruling which increases the power of government, and it doesn’t find any inherent right to abortion, merely a right to privacy free of governmental intrusion. Similar findings have been made about all kinds of other personal decisions in a person’s life.
This is only controversial because there’s a controversy about whether the fetus has rights also. The strange thing is, the very people who argue that the right to privacy is not protected in the Constitution, that Roe invented new rights, want the Court to declare that fetuses are legal persons with individual rights of their own. The whole anti-abortion crusade is based on this notion of a fetal “right to life”. So they want the court to not only invent a new right, but a new class of human organisms that have rights of their own. Clearly this would take a constitutional amendment, but they want to short-cut that by judicial fiat. Strange logic at work here.
As far as textual support for the right to privacy goes, there’s the ninth amendment:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
It is correct to say that _Marbury_ found an implied judicial power relative to the other two branches of the Federal Govt., but that does not mean that they have an equal authority to discover a personal right. This would be, I imagine , why J. Blackmun chose not to cite to _Marbury_ in the opinion for _Roe_…. it just wasn’t germaine to the argument he was attempting to make. I further note that Blackmun explicitly declined to follow the lead of the district court and ground his opinion on the Ninth Amendment.
If one accepts the authority of The Supremes to hand down these kind of edicts, I see no reason at all why they couldn’t also turn around and, in reversing _Roe_, find a protected fetal life interest under the 14th Amendment. Are you, then, prepared to stand by you logic and accept that absent a Constitutional Amendment they are the final arbiter of this question? Or would you like to be heard on the matter? It looks to me like if Scalia, Roberts, Thomas and Alito could get one more vote that could happen…..and those guys are all quite young by Court standards.
There are volumes of very learned debate out there on this issue….I don’t want to regurgitate more of it than I already have, and I daresay no one else could bear to listen to it. But as a Parthian Shot I will note that _Roe_ is often pointed out to be a very inartful decision even by critics on the left. Among the most prominent of these critics is one Ruth Bader Ginsburg. Her very good law review article is readily accessible through the _Roe v. Wade_ link provided by Wikipedia, so it isn’t hard to find. Her central critique is that _Roe_ -guess what? – short-circuited the democratic process and needlessly inflamed anti-abortion forces.
If Marbury is constitutional in principle, then so is Roe.
It seems to me, conradg, that the question is, does the Court have infinite power?
Or does the Constitution simply mean whatever the Court wants it to mean at a given point?
“It seems to me, conradg, that the question is, does the Court have infinite power?”
No. Supreme Court justices can be impeached just like the President. But it does have “infinite power” in regard to judicial decisions until its members are impeached, theoretically at least. That is why it is probably the most self-restraining of the three branches of government – because it has the least amount of legal restraint upon it.
As for the court finding an implied fetal right in the Constitution, this would seem very hard to do, in that the original Constitution and the 14th amendment defines citizens/persons as those “born or naturalized in the United States”. Since fetuses are by definition not born, they can’t have rights. It’s one thing to argue over what rights we have, it’s another to redefine who is even a person, and what rights they would have. There’s no question, I think, that the founders did not intend fetuses to have rights, and the latter amendments to the constitution that granted rights to slaves, for example, did not extend that provision to the unborn. So, in short, this is not going to happen without either a constitutional amendment, or five justices who simply don’t care what the constitution actually says or intended.
I don’t think even Scalia, Thomas, Roberts and Alito would go that far. That doesn’t mean they couldn’t overturn Roe, but not on that basis. And frankly, I don’t think they would overturn Roe, just chip away at it a bit. I think they would prefer a constitutional amendment also. One of the reasons I don’t think they’d go that far is that there has been so little democratic efforts at an amendment – it hasn’t gone anywhere, which gives the court little reason to think that there’s much of a groundswell of support for overturning Roe. If actually got somewhere, but was falling short by a few states, the Court could reason that overturning Roe and sending it back to the states wouldn’t hurt anyone much, since those states that rejected it could still legalize abortion in their states – unless the court suddenly and radically decided that fetuses were persons with rights. Which is another reason the court wouldnt’ go that route – it would leave no room for any compromise.
conradg, you did not exactly answeer my question.
You said:
“If Marbury is constitutional in principle, then so is Roe.”
My question is, are you saying that anything the Supreme Court decides is Constitutional as long as it can get away with it (as opposed to being corrupt and unconstitutional, but happening anyway because the other branches are corrupt). Obviously as a practical matter the Supreme Court has a large amount of power unless its members are impeached (or unless the executive and legislative branches falt-out ignore its decisions). My question was more along the lines of whether you believe any decision it makes is automatically legitimate or whether you could consider its decisions to be abuse of its powers, even when it gets away with it?
I guess what I am saying is that I am not asking about the practical aspects of what the Court can do, but whether or not you could see any Court decisions as an outrageous abuse of power and illegitimate, as opposed to just not being what you wanted.
The SCOTUS does not have infinite power – it controls no police force and no armed forces. I think we have seen that the POTUS can safely ignore both Congress and the SC because the only real check on Presidential power is the ballot box – whether in an election or impeachment.
As conrad pointed out, the framers of the constitution recognized that not all rights could be enumerated in one document. It is entirely the purview of the SCOTUS to decide whether a newly presented right, as was the right to privacy, is one contemplated by the 9th amendment.
In reading the Wikipedia entry on the 9th amendment, it seems clear that the 9th amendment was intended by the framers to act as a restraint on the exercise of governmental power. That should be perfectly acceptable to liberals and social conservatives alike.
As with so many things, it’s outcomes we dislike, not the process itself.
Finally, speaking to both John’s and Ross’ take on limiting 2nd trimester abortions; paraphrasing Ross, either a fetus is viable, or it is not. If it is not viable in the 2nd trimester, then there is no difference between abortion in the 1st vs abortion in the 2nd.
Jake
monotheletism, ochlocracy. You’re teaching me a lot of new words, Daniel.
Glaiv,
Of course the Supreme Court can make a wrong decision. But since it is the entity charged with deciding what is right and what is wrong, those wrong decisions can only be corrected either by Constitutional Amendment, impeachment, latter overturning of precedent by another court, executive refusal to abide by the ruling which withstands congressional impeachment, military coup, or armed insurrection. But legally, every decision that Supreme Court makes is by definition legitimate, since the Supreme Court is the body that determines what is legitimate and what is not. People may of course disagree with those decisions, but in our democracy, those decisions have to stand and be enforced until otherwise legally overturned. It’s a lot of power, to be sure, but it’s part of the contract we entered into to generate stability in our government.