Legislate, Don't Adjudicate
By Sean Evans, Chair and Professor of Political Science
Jun 27, 2022 -
The Dobbs decision overturning the constitutional right to abortion should end the myth that the Supreme Court can create new constitutional rights or settle contentious issues. Only the political branches passing laws that reflect a consensual public position can do this.
The myth that courts can cause social and political change is based on the Civil Rights Movement’s success. Many believe Brown v Board of Education integrated schools. However, integration was sporadic until the Elementary and Secondary Education Act of 1965 provided federal money to school districts if they integrated. The power of the Civil Rights Movement was the political pressure it applied through its civil disobedience campaign helped by segregationists’ violent response that moved public opinion and convinced elected officials to ban discrimination in public accommodations, employment, voting, and housing.
These perceived legal successes led other groups to pursue court action and bypass the political branches. Yet, abortion rights are different from civil rights for minorities. The Thirteenth, Fourteenth, and Fifteenth Amendments explicitly guarantee rights to racial minorities while abortion rights have no textual or historical basis in the constitution and were based on a new, controversial right to marital and sexual privacy.
Second, fifty years of contentious public debate and attempted legislative restrictions showed there was no consensus over abortion which differentiates abortion from the Court ratifying the emerging consensus on same-sex marriage when 60% of Americans supported it. Today, 70% of Americans support same-sex marriage, including most Republicans.
Third, the Court typically adapts watershed decisions to political realities as new appointees to the courts narrow the major decision to something acceptable to the public. The Court tried to do this by stepping back from banning all abortion regulations in Roe to upholding bans on public funding of abortion, parental notification requirements, informed consent provisions, 24-hour waiting periods, and partial birth abortion bans and accepting the state’s interest in regulating abortion at viability.
While the pre-Dobbs Court was probably close to public opinion by upholding a heavily regulated abortion scheme, only the legislature has the legitimacy to settle controversial issues as the late liberal Justice Ruth Bader Ginsburg recognized. She supported a constitutional right to abortion but believed that the Court short-circuited and polarized the abortion debate. She thought a state legislative-led liberalization of abortion laws that began in the 1960s would have succeeded like no-fault divorce laws that had passed in every state by the mid-1980s.
Finally, legislatures are better venues for settling contentious issues. First, many will reluctantly accept legislative action they oppose but view courts overturning the decisions of elected officials as undemocratic. Second, legal arguments tend to be black and white with a clear hero and villain and lead to polarization. Legislating requires the building of coalitions which requires participants to understand opponents and make reasoned, winsome arguments to gain more supporters. It also leads to compromises that leave most people happy and eventually settle the issue. Of course, state laws that do not reflect state opinion, like Tennessee’s near-total ban on abortion, will continue to be challenged until they better reflect state opinion or pro-life supporters convince more people to support the law.
Our Founders recognized that the courts are “the least dangerous branch” because they lack the power of enforcement. Our nation’s history toward Blacks reinforces the idea that the political will must exist to enforce constitutional rights. Since the democratic process is preferable to the elite-led process of the courts, those who want to vindicate their rights should begin convincing the public. If you win the public, legislation will follow, and you don’t need to rely on the courts.
This column originally appeared in The Jackson Sun