With President Trump out of quarantine and the debates resuming (maybe), abortion will return to center stage. Democrats will seek to turn this week’s Senate hearings on Amy Coney Barrett’s nomination to the U.S. Supreme Court into a morality play. Expect to watch senators imply that her devout Catholic religious beliefs portend the judicial imposition of a patriarchal society. Republicans, on the other hand, will portray Barrett as a nominee who has not prejudged any controversial issues. Both sides may seek to engage Barrett in discussions about precedent, originalist interpretive methodology and the role of the courts in our democracy. But make no mistake: Both sides are talking about abortion.
Abortion itself should not be the be-all and end-all of politics—it certainly isn’t in most other advanced democracies. Nevertheless, progressives, who have long made abortion a litmus test, see its easy availability as perhaps the most sacrosanct policy in their pantheon (with only affirmative action as competition). Conservatives have generally rejected litmus tests, but instead focus on whether judges would follow the original meaning of the Constitution. (Senator Josh Hawley (R-Mo.), however, has recently declared that he will not support any Supreme Court nominee who does not have a record criticizing Roe v. Wade.)
Senators would violate the proper balance between the legislature and an independent judiciary if they tried to elicit promises from Barrett on how she would rule on future abortion cases. As Abraham Lincoln reportedly said when considering Salmon Chase for the Court: “[W]e wish for a chief justice who will sustain what has been done in regard to emancipation and the legal tenders. We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known.”
But senators have every right to ask Barrett to evaluate past cases. Senators can ask Barrett whether she thinks Roe v. Wade properly interpreted the Constitution and amounted to fine judicial craftsmanship, or whether Casey v. Planned Parenthood (1992) correctly upheld Roe as good precedent. (Though senators should not be surprised if Barrett takes a page out of the late Justice Ruth Bader Ginsburg’s confirmation playbook and refuses to answer.)
A future justice’s views on Roe is an important question, but not necessarily because of abortion itself (though we of course recognize its importance to both conservatives and liberals). Rather, a nominee’s view on Roe gives us insight into her understanding of a federal judge’s role. Support for Roe suggests she might read her policy preferences into the Constitution. Criticism of Roe implies she will faithfully interpret the Constitution according to its meaning when drafted and ratified. She can believe her role as a judge is to adjust the Constitution to society’s contemporary mores. Or she can reserve to the sovereign people the decision whether to add new rights through the democratic process of elections, legislation or constitutional amendment.
Abortion represents the poster child for the Supreme Court’s misguided adventure into the world of unwritten, non-textual rights. For the last half-century, the Left has turned to the Supreme Court to win what it could not in the normal political process. The Court has embedded the sexual revolution into the Constitution and “found” new progressive rights for privacy and dignity, as well as protections against animus. Many conservatives do not seek to overturn Roe because they are necessarily obsessed with abortion; rather, they demand its reversal because it represents an abuse of the Constitution by short-circuiting democracy in the service of the latest, fashionable ideals.
While the Fifth and 14th Amendments declare that no person can “be deprived of life, liberty, or property, without due process of law,” that text fairly screams out for courts to define fair process—does an individual have a right to a trial, to a lawyer, to confront witnesses, to provide evidence? What the Due Process Clause does not create, as Roe claimed, are new substantive rights. A majority of a liberal 1970s Court peered into the constitutional shadows and found a right to abortion that had gone undiscovered for nearly two centuries.
While many on the Left loved Roe‘s result, some of its more serious thinkers worried. Future Justice Ginsburg, for example, argued that the Constitution’s Equal Protection Clause, not the non-textual privacy right, should protect abortion—or, better yet, abortion rights could be expanded in state-by-state adoption. The liberal scholar John Hart Ely called Roe “a very bad decision.” Roe was “bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Without Roe, it’s unlikely we would have Obergefell, which ushered in same-sex marriage as another novel constitutional right.
Suppose Barrett were to join the five other justices appointed by Republicans to narrow, or even eventually overrule, Roe (though we doubt whether a majority on the Court exists to do so). This would not end abortion as a right. It would only return the controversy to the political process, where our nation makes other life-and-death decisions all the time. Some states, such as New York, will protect abortion rights to the hilt. Other states, such as Mississippi, may ban abortion. But that is the case with a host of other issues not found in the Constitution, such as the death penalty and euthanasia. That is the nature of our government’s federalist structure: When the Constitution is silent on a matter, we leave it up to the states.
Judicial retreat from the abortion wars would rejuvenate our politics. Still influenced by the example of the Warren Court, the justices have steadily added more and more important social issues to its docket. Every time the Court claims authority over another social issue, it deprives our statehouses or Congress of the right to determine the policies that govern the American people. As it assumes the powers of a legislature, the Court has steadily become more political. It is no surprise that the Barrett nomination is taking on the character of an electoral campaign. Anyone who cares deeply about abortion, gay marriage, race, religion or speech can advance their views only by influencing the appointment of federal judges, rather than working to win elections. They will view the decisions of the justices on these issues as political, rather than legal.
Restoring these issues to the political process will result in a diversity of policies on many issues. Our federal system already allows such difference on matters of life and death, crime and punishment, property and contract, marriage and family. The states, and the people, will become more responsible for their own destiny—leading to a more robust democracy than the increasingly fragile one we have today. It may ask too much for the Court to clip its own wings. But with Barrett soon there, it might just have the confidence to correct its own indefensible privacy jurisprudence.
Barrett’s hearings, though likely to become a political assault on a woman of exemplary character, education and experience, could take an important first step toward withdrawing the Court from the political battlefield that it has entered. The best way for the Court to stay out of politics is for the Court to stay out of politics.
John C. Yoo is Emanuel S. Heller Professor of Law at UC Berkeley School of Law, a visiting fellow at the American Enterprise Institute, a visiting scholar at the Hoover Institution and the author of the new book, Defender in Chief: Donald Trump’s Fight for Presidential Power. James Phillips is an assistant professor of law at Chapman University’s Fowler School of Law.
The views expressed in this article are the writers’ own.
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