There Are Certain Things the Supreme Court Can’t Settle

There Are Certain Things the Supreme Court Can’t Settle

“Where, in the course of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe,” the justices said, “its decision has a dimension that the resolution of a normal case does not carry.”

Of course, this call has never been answered, and Dailion’s publication of the draft Samuel Alito judgment overturning Roe on Monday night served as yet another glaring reminder.

The astonishing breach of the court’s time-honored confidentially highlighted how the court’s acrimonious, decades-long debate over abortion had into its sanctum, irrevocably altering its internal ethos.

“So how is settling the national rift over abortion once and for all working out for you?” the episode offered as a logical rhetorical inquiry for the Casey justices (most of whom are no longer with us).

The Court’s desire to impose its will on a contentious moral issue with far-reaching political ramifications in Roe and Casey, and its failure to gain acquiescence — indeed, to have its own legitimacy called into question — harkens back to Dred Scott v. Sandford, another sweepingly ambitious decision motivated by a desire to forge social peace that disastrously backfired.

As an outspoken opponent of abortion and a supporter of Roe v. Wade, I see a deeper parallel between the two judgments as equally ill-considered acts of judicial fiat that cement grave societal injustices. At the very least, the Roe v. Wade and Dred Scott cases demonstrate that the Supreme Court is a terrible political and moral arbiter and that by attempting to end debates, it can instead accelerate and deepen them.

Of course, Dred Scott refers to the enslaved African American of that name who was brought from Missouri, a slave state, into free territory and then back to Missouri by his master. Scott sued for his freedom, claiming that his visits to Illinois and Wisconsin made him free. He took his case all the way to the Supreme Court, where he was famously defeated in a 7-2 decision in 1857.

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The court initially favored a “limited” judgment, holding that the matter had no place in federal court. Instead, it chose to go bigger and address the fundamental issue of the Missouri Compromise, a law passed in 1820 that admitted Missouri as a slave state while prohibiting slavery north of the 36°30′ parallel in the remainder of the Louisiana Purchase.

“Some of the judges felt that sectional conflict had fed for a decade upon the uncertainty regarding the constitutional question and that it was their judicial responsibility to settle the matter,” says David Potter in his classic book on the run-up to the Civil War, The Impending Crisis.

They botched the deal.

Chief Justice Roger Taney contended that Black people could not be citizens, despite the fact that they had previously been recognized as citizens in states. Taney also found that the Missouri Compromise’s ban on slavery was an unlawful infringement on slave owners’ property rights. He had to skirt around the Constitution’s provision that Congress has the “authority to dispose of and adopt all necessary rules and regulations concerning the territory or other property of the United States.”

This stilted argument on behalf of a morally flawed position that would prevent Congress from curbing the expansion of human bondage was not going to be accepted by any opponent of slavery.

The decision sparked accusations of a “political choice,” assertions that the court’s majority (nearly all Southern) was motivated by personal commitments, and attacks on the court’s credibility. “If epithets and denunciations could collapse a judicial body, the Supreme Court of the United States would never be heard of again,” one observer said at the time.

This was the reaction of the right when the court handed down Roe in 1973, and it’s the attitude of the left as it prepares to overthrow it in 2022.

Dred Scott sparked conspiracy theories that were backed up by the most powerful Republicans of the time, including William Seward and Abraham Lincoln. The future 16th president claimed that key Democratic officials and the Supreme Court were working together. “From the outset, everyone knew one another,” he insisted, “and everyone worked on a shared plan or draft drawn up before the first lick was struck.” (There were some irregularities in the judgment, but nothing as serious as Lincoln claimed.)

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The Supreme Court’s breach adds a layer of mystery to the court’s work, and it has only served to erode both parties’ faith in the process.

Dred Scott caused tremendous turbulence on the court, with Benjamin Curtis, the author of a famous dissent, quitting.

The court is currently conducting an internal investigation into Roe, and the justices who could form a majority to overturn the judgment would require security.

Dred Scott didn’t even come close to putting an end to the slavery debate. “They had committed themselves on a subject around which the lawmakers had erected a complex edifice of evasion,” Potter says, “overestimating the authority of the judiciary to settle a troubled political question.”

“Apart from a broad popular reverence for the judiciary, there was nothing in the circumstances to warrant the notion that six judges could settle a subject that a succession of Congresses had admitted their incapacity to settle,” he writes.

Roe and Casey have also been unable to reach an agreement. Nobody is going to change their thoughts about abortion just because the court says so. The court, on the contrary, fuelled further strife by a short-circuiting democratic discourse on the issue.

In the normal course of things, our federal structure has a lot of giving to it. Different states can experiment with different approaches, and people can relocate to states that they prefer. A blanket edict from the court eliminates all of this flexibility, as well as the capacity of citizens in different states to voice their differing moral perspectives.

If Roe had never been decided, abortion laws would almost certainly have continued to liberalize while many limitations would have remained in place. A patchwork, shaky equilibrium would have been achieved, which would have been unsatisfying to both sides but democratically legitimate and adaptable to shifting social norms.

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Roe and Casey’s regime effectively kept abortion opponents out of the political process while providing abortion rights advocates with all they needed without having to go through the process of persuading voters. As a result, both sides focused a lot of energy on the fight over court composition as a proxy for the fight over abortion policy — the court didn’t so much remove abortion from the political world as it did put itself, as the decider of abortion policy, at the center of it.

No one can infer that what has happened in the last few days, let alone the last 50 years, has been good for the court or our politics.

The late Antonin Scalia referenced a portrait of Roger Taney of Harvard Law School looking deeply sorrowful when he dissented in Casey. Scalia pictured the Chief Justice as despondent by the consequences of his ambitious Dred Scott decision. If such was the case, Taney would have had much more reason to be depressed if he had seen the court’s foolishness in Roe play out over the decades.

“By closing all democratic outlets for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing to impose a rigid national rule instead of allowing for regional differences, the court merely prolongs and intensifies the anguish,” Scalia concluded.

“We should get out of this area,” he insisted, “where we have no right to be and where we are doing neither ourselves nor the country any good by staying.”

He was correct, but after dominating this field for so long, the court’s exit is proving more difficult than even the foresighted Scalia could have predicted.


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