Screwing the SCOTUS Pooch
Here’s a horrible idea:
Justice Kennedy, for example, could simply write, “I agree with many of the arguments by four of my colleagues that statute X is unconstitutional, but I do not believe we as a court should overturn the considered and democratically accountable wisdom of Congress without more consensus.”
In the name of judicial restraint, I, Justice Me, hereby decline to rule on a case according to its constitutionality! Judicial activism is a function of the politicizing of the judiciary function. So concerned with practicality, the logic to this nightmarish plan (put forth by Jed Shugerman, Harvard Law professor…duh), has the practical effect of a rabbit-punch to Blind Justice’s gut a gut punch to the blind rabbit of Justice.*
Strangely, I heard about this from Ross Douthat — who is usually so measured and sound about stuff that his support for this kind of blatant judicial legislating leaves me flummoxed and flabbergasted! Substantive judicial legislating, where the motions of the rule of law are gone through cleverly enough to produce the outcome one wanted from the beginning, is bad enough. But this procedural judicial legislating, where the outcome desired is actually to abandon jurisprudence as the means to arriving at a decision, is just shameless. I’m not sure I can think of a more damaging course of action to the legitimacy and authority of the Court. See O’Connor’s plurality opinion in Planned Parenthood v. Casey, which in a fatal irony reinforced the principle it condemned:
Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.
The Court’s duty in the present case is clear. In 1973, it confronted the already divisive issue of governmental power to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only moreintense. A decision to overrule Roe‘s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe‘s original decision, and we do so today.
So in order to convince the American people that the Court was not just making a decision based on what the American people wanted it to be, the Court would decide in accordance with what some decisive portion of the American people expected the decision to be. A painful predicament. If anything, making this tortured process into a celebrated first priority will probably result in more plurality opinions, not more majority ones, and at any rate a vast new body of what I’d be inclined to call anti-constitutional law.
* Edit courtesy Matt Frost.