Plainly Unconstitutional

The​ judiciary, Alexander Hamilton wrote in ‘Federalist No. 78’, was ‘beyond comparison the weakest of the three departments of power’. Today, in the United States, that is open to question. All it takes to nullify the decisions of the president or the legislature is the decision of five members of the Supreme Court – and there is often no practical way to reverse the court’s rulings. Few institutions concentrate so much power in so few hands. Hamilton’s point was that the judiciary, unlike the executive and legislature, ‘has no influence over either the sword or the purse’. Its power depends on the willingness of others – especially the elite, but not only them – to follow its decisions. (When, early in the court’s history, the chief justice reached a decision that President Andrew Jackson disliked, Jackson is said to have remarked: ‘John Marshall has made his decision, now let him enforce it.’) If the court’s decisions are not seen as legitimate, its power could fade.

Stephen Breyer, a Supreme Court justice since 1994, is concerned that this power is under threat. In his new book, The Authority of the Court and the Peril of Politics (Harvard, £15.95), he asks: ‘How can we build or maintain a system that makes acceptance [of Supreme Court decisions] more likely?’ This is the wrong question. The public should accept the court’s power, and its decisions, only if that power is legitimate. Yet the court’s powers are flatly inconsistent with democracy and its decisions have undermined the conditions of democratic governance. To take just one of the more notorious examples in recent years, in 2013 the court, on a five-four decision, invalidated a vital enforcement mechanism in the Voting Rights Act 1965, which had been reauthorised by Congress only seven years earlier. In the wake of that decision, the Southern states raced to introduce new restrictions on voting, to the detriment of minority voters. The court has also made it impossible to pass sensible campaign finance laws and precluded the review of partisan gerrymandering of congressional districts.

One prominent strand of constitutional theory justifies the court’s powers precisely as counter-majoritarian, a defence against the tyranny of majorities. Even if that account could be squared with democratic principle, history gives us scant reason to believe that the court is a meaningful bulwark in times of need. When Japanese Americans were interned during the Second World War, the court held that this was permissible. When Donald Trump’s Muslim ban was challenged, the court refused to annul it on the basis that (against all the extrinsic evidence) it was not directed towards Muslims.

Breyer’s response to all this is that judges are ‘jurists’, not ‘unelected political officials or “junior varsity” politicians’, and that ‘jurisprudential differences, not political ones, account for most, perhaps almost all, of judicial disagreements.’ The argument seems to be: if the Supreme Court’s decisions are ‘jurisprudential’, not ‘political’, the court’s power might be justified. I doubt that. But it doesn’t really matter: Breyer says enough to show that his key premise – that the judges’ disagreements are not political – is wrong.

As he points out, the language of the US constitution is ‘highly general’. For example, the Supreme Court will soon consider whether John Henry Ramirez, sentenced to death by the state of Texas, should be permitted to have his pastor touch and pray aloud with him as the lethal injection is administered. This turns on whether Texas’s proscription prohibits ‘the free exercise’ of Ramirez’s religion. The decisions the court has made over the years on the presence of spiritual advisers in the execution chamber are irreconcilable, their outcomes apparently dependent on the religion of the condemned. Alabama, for instance, permits a Christian inmate to have a minister kneeling beside him. But when Domineque Ray requested that his imam be allowed, the court ordered that Ray be executed without spiritual counsel.

So the court could go either way in Ramirez’s case. Whatever the result, it will not be decided by the text of the law alone. Breyer tells us that the court’s decisions, especially on moral issues where the language is very broad, are influenced by ‘a judge’s background, experience and personal views about law’s objectives, the court’s role, or the nation’s life’. When people worry that the court’s decisions are ‘political’, their worry is often precisely that such considerations will have an outsized influence on outcomes.

The US constitution, even including the amendments, is a very short document, yet textbooks on US constitutional law run to thousands of pages. Why? Because the actual law is the product of court decisions. The decision in the Ramirez case will generate a rule for all subsequent cases: effectively, the political preferences of the majority of judges in the Ramirez case will legislate for the nation. In close cases, the only real question is the political preferences of the judge in the ‘middle’: when there are nine justices, a litigant needs five votes to win. (A death penalty litigator once told me that his strategy was to ‘shut Antonin Scalia up long enough to get Anthony Kennedy on my side’.)

The composition of the Supreme Court determines the path of the country. It is therefore unsurprising that appointments to the court are politically contentious. (The Trump administration displayed a rare competence in the ruthless efficiency of its judicial appointments, which remade the federal judiciary. This was the product of a decades-long campaign by conservatives to take control of the courts.) By the same token, judicial retirements are of great political moment. Obama tried to nudge Ruth Bader Ginsburg to retire in 2013, when the Democrats still held the Senate; his efforts were rebuffed. Then, in February 2016, Scalia died when the Senate was controlled by Republicans, who refused to hold hearings on Obama’s nominee. The consequences have already been dramatic.

Texas’s Senate Bill 8, or SB8, makes it illegal for a doctor to perform an abortion if they either detect cardiac activity in an embryo or fail to perform a test to detect such activity. The law makes no exception for victims of rape. (Governor Greg Abbott reasoned that ‘Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas.’) A woman cannot get pregnant until she has ovulated, which is usually halfway through her cycle; the first sign of pregnancy tends to be missing a period. Given that cardiac activity in an embryo is normally apparent roughly six weeks after conception, in practice women are likely to have about two weeks after a missed period to act. It is estimated that between 85 and 90 per cent of those who would previously have sought abortions can no longer do so in Texas.

In 1973, in Roe v. Wade, the Supreme Court held that there is a constitutional right to an abortion. The limits of that right are now chiefly defined by Planned Parenthood of South-Eastern Pa. v. Casey, a 1992 decision which held that states may not place an ‘undue burden’ on women’s rights to abortion prior to foetal viability through the imposition of a ‘substantial obstacle’ to abortion access. Given that SB8 makes abortion unlawful in most cases, it seems to be, in the words of Justice Sonia Sotomayor, ‘plainly unconstitutional’.

When faced with unconstitutional laws, petitioners usually seek a court order against the state officials charged with enforcing the law. In Roe v. Wade, the defendant was Henry Wade, the district attorney of Dallas County, Texas. But SB8 provides that no state official may participate in the enforcement of the law. Instead, it allows anyone, anywhere in the United States, to claim ‘not less than $10,000’ (as well as costs and lawyers’ fees) from those who provide abortions, those who ‘aid or abet’, and even those who merely intend to aid and abet, an abortion.

The scheme was designed to hamstring the courts: the theory is that an ordinary injunction cannot be issued since there is no state official to enjoin. But Texas’s logic seems faulty. Laws do not enforce themselves. Civil suits are brought in public courts, where judges (i.e. state officials) make orders. For that reason, in challenging SB8 the petitioners brought a suit against the judges of Texas (as well as a few others, like court clerks), seeking an injunction prohibiting them from taking any actions based on it.

After convoluted procedural steps in Texas, the case came before the Supreme Court. By a majority of five to four, with Amy Coney Barrett (Ginsburg’s replacement) providing the decisive vote, the court declined to grant the injunction. The five reasoned that the court’s power was limited to enjoining ‘individuals tasked with enforcing laws’ and that Texas had represented to them that ‘neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.’ This strains credulity. As Sotomayor put it in a powerful dissent, ‘it cannot be the case that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.’

Enforcement of the law may ultimately be enjoined: the Department of Justice has now brought its own claim against the state of Texas. (Private parties couldn’t do this since Texas enjoys immunity from suit from private citizens.) A district court judge ruled in the DoJ’s favour and the case is now on appeal; it will likely come before the Supreme Court again soon. But whatever the eventual outcome, Texas will have achieved many of its ends. SB8 went into effect. Some women are able to leave the state to obtain an abortion: clinics in Tulsa and Oklahoma City have seen a 646 per cent increase in the number of Texan patients. One child, raped by a family member, took an eight-hour journey from Galveston to Oklahoma to get an abortion. Many – principally those without the means to travel out of state – will simply be unable to obtain abortions. And the effects of this may be permanent: the threat to doctors may result in the closure of clinics.

Breyer dissented. His real disagreement with the majority is obvious: the conservative justices do not believe there should be court-created rights to abortion, so they were unwilling to protect those constitutional rights. If, by contrast, New York had passed a law empowering private citizens to bring such claims against handgun owners, the conservative majority would no doubt have issued an injunction. These disagreements are not helpfully explained in terms of differing ‘judicial philosophies’. The Texas decision was handed down shortly before Breyer’s book was published in the US; as he admits, ‘the timing wasn’t very good.’

As a result of Barrett’s appointment, the court now has a six-three conservative majority. Until now, liberals could always hope to convince Roberts or Gorsuch to their cause. They now need both justices if they are to form a majority. Liberal commentators have implored Breyer, who is 83, to step down while the Democrats have control of both the presidency and the Senate. In response, Breyer has said that he ‘does not intend to die on the court’. (I’m reminded of Joseph Heller’s description of Yossarian as a man who intended to ‘live forever or die in the attempt’.) However, having considered ‘many factors’ (he doesn’t make clear what they are), he has decided ‘on balance’ that he won’t retire just yet.

The Democrats may hold the Senate in next year’s midterm elections. They may not. If Breyer retires before the midterms, he will probably be replaced by Ketanji Brown Jackson, a judge on the District of Columbia Court of Appeals. If he dies or retires after that, and the Republican Party gains control of the Senate, Mitch McConnell will refuse to confirm any nominee (as he did under Obama). Faced with these odds, has Breyer any moral reason to stay? He might argue that retiring to guarantee a Democrat-nominated successor is engaging in politics, a corruption of his role. But that wouldn’t be consistent: his thesis is that ‘judicial philosophies’ explain the differences between judges and that these philosophies are not political; retiring to ensure the appointment of a judge who shares his judicial philosophy would not, on that logic, be a political move. But this is all smoke: the decision when to retire is his to make, and it doesn’t have anything to do with judicial philosophy. Why should he ignore the politics of it?