Bennett Speaks on Court Legitimacy After Dobbs for Constitution Day
Posted Sep 20, 2022
Last night, Daniel Bennett, a Political Science Professor at John Brown University and the author of Defending Faith: The Politics of the Christian Conservative Legal Movement, spoke on how The Dobbs decision that returned decisions about abortion to the states is affecting the Supreme Court’s legitimacy. The Supreme Court is in a strange situation where it is a political institution but is seen above politics. The latter usually means that the public has greater confidence in the Supreme Court than Congress or the presidency while the former means that unpopular decisions can harm the Court’s power and legitimacy.
He began by discussing the Roe v Wade (1973) and its antecedent Griswold v Connecticut (1965). Griswold used the penumbras of constitutional amendments to declare that a right to privacy existed. Then in Roe, the Court ruled that this right to privacy was broad enough to include decisions to end a pregnancy. The Court then created a trimester approach where abortion could not be regulated in the first trimester but the state’s right to protect life increased in the last two trimesters. In response to this decision, conservative and Christian groups mobilized pushing for a constitutional amendment asserting a right to life, legal actions against abortion clinics, and laws to restrict it. The decision also led to the creation of multiple Christian political groups such as the Moral Majority, Christian Coalition, etc. and many conservative legal groups such as Alliance Defending Freedom and the First Liberty Institute.
Conservatives had several false starts in overturning Roe. However, one of those false starts, Casey v Planned Parenthood of PA (1992), had a silver lining. While the Court upheld the essence of Roe, they abandoned the trimester approach for the undue burden standard which gave states greater leeway in regulating abortion.
Then, 18,051 days after Roe, the Supreme Court reversed Roe and returned the decision to the states on whether to ban or regulate abortion in Dobbs v Jackson Women’s Health (2022). In the opinion, Justice Alito wrote that “Roe was egregiously wrong from the start, exceptionally weak, and the decision has had damaging consequences.” Chief Justice Roberts, in his concurring opinion, sought to uphold the 15 week ban and no further, as part of his judicial minimalism. Justice Thomas, in his concurrence, sought to challenge other precedents based on substantive due process. Finally, the dissenters decried the decision as based on ideology and the not the law.
Critics of the Dobbs decision usually make several arguments against it. First, the decision led to a rare leak of a SCOTUS decision. Some blamed conservatives who wanted to make sure that no justice would change their mind while others thought liberals did it to pressure the court to not overturn Roe. Regardless, the tight community of law clerks, justices, and administrative staff was divided and angry at each other. This is important because the court relies on its apolitical status to make rulings, and this might portend that the Court will begin to leak like other political branches which would undermine its power.
Second, critics argue that overturning precedent like this makes the court an unelected legislature. A basic principle of judicial interpretation is stare decisis or let the decision stand because it brings stability to the law. Of course, whether one supports stare decisis depends on whether one agrees with the decision. Regardless, reversing precedents may make the court look political and undermine its legitimacy.
Third, many believe the decision is a result of over political decisions. These individuals point out that Senate Republicans refused to hold hearings for President Obama’s nominee of Merrick Garland in 1996 after Justice Scalia died. When Trump won, the Senate quickly confirmed Neil Gorsuch to replace him by ending the ability of Senators to filibuster Supreme Court nominees which maintained the Court’s 5-4 conservative majority. Then when Justice Ruth Bader Ginsburg died two months before the 2020 election, Senate Republicans rushed through the confirmation of Amy Coney Barrett to create a 6-3 conservative majority. While none of the things that Republicans did were illegal, many thought that they violated norms to advance conservative goals, which was fulfilled in the Dobbs decision.
Bennett then concluded with discussing three scenarios regarding the Court’s legitimacy. First, the best case scenario is that the Court goes about its business but the focus on the 2022 and 2024 elections will distract people from the Court’s work. The justices will continue to do their job and disagree with each other as one would expect. Some may claim the Court is politicized but the court’s decisions fade from view.
The worst case scenario is that the internal dynamics of the Court breakdown further as the justices snipe at each other in public and private. The politicization argument becomes more popular which leads pressure to reform the Court. When the Democrats have united government, they would then expand the Court to fifteen members adding 6 rigidly ideological justices to advance their goals. Then when Republicans gain united control of government, they would add another 6 conservative justices and the cycle would continue undermining the power and influence of the court.
He concluded that the most likely scenario is closer to the best case scenario. The Court will issue controversial decisions which raise the ire of the public. Politicians will question the Court’s motivation but reforms to the court will not pass. Dobbs is not the first or last case that leads people to question the legitimacy of the Court. In Bush v Gore, the Supreme Court stopped the counting of votes in Florida as the Republicans justices voted one way and Democratic justices voted the other. The Court survived that episode and will likely survive this episode. Bennett believes that the strength of political institutions is stronger than some believe and that our political system is rather resilient. This biggest threat may be a challenge to the 2024 election, but he believes the courts will handle it as well as it did the 2020 election. The Court’s legitimacy may be shaky, but it is not crumbling. The Court still has higher approval ratings than the other branches and the public is largely uninformed about Court actions. This obscurity may help it in the end. The media may focus on the court, but the attention to the court is usually fleeting.