What are judges for?
April 18, 2019
With the retirement of Justice Anthony Kennedy from the Supreme Court, interest groups and politicians are insisting that any replacement must pledge to uphold the court’s Roe v. Wade decision on abortion.
In response, the U.S. Conference of Catholic Bishops has objected that “support for Roe is an impoverished standard for assessing judicial ability,” noting that Roe is morally wrong, socially harmful and wrongly decided. That last point raises a question: What are judges (especially Supreme Court judges) for? How do they avoid making wrong decisions?
When our Constitution was debated in the 1780s, some said it gave far too much power to judges. In theory there were checks and balances: Legislators would make the laws, the executive branch would implement and enforce them, and judges would resolve disputes as to what the laws mean. In reality, though, unelected judges appointed for life could wield ultimate power, invalidating any law they opposed.
In the Federalist Papers defending the proposed Constitution, Alexander Hamilton replied that this misconceived what judges would be for in the new nation. The Supreme Court would have “neither force nor will, but merely judgment.” Judges could reject a law only because it was at “irreconcilable variance” with our fundamental law, the Constitution – not because they disagreed with it. The judiciary would be “the least dangerous” branch in our legal system.
Which brings us to the amazing fact that ever since Roe v. Wade was decided in 1973, even legal experts favoring abortion have found it completely unconvincing as a judgment about what the Constitution means.
Yale law professor John Hart Ely said, “It is bad constitutional law, or rather it is not constitutional law and gives almost no sense of an obligation to try to be.”
Laurence Tribe of Harvard wrote: “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
Edward Lazarus, former clerk to Justice Harry Blackmun who wrote Roe’s majority opinion, has said that “as a matter of constitutional interpretation, even most liberal jurisprudes – if you administer truth serum – will tell you it is basically indefensible.”
Some of that truth serum flowed through the court when it decided Planned Parenthood v. Casey in 1992. Upholding most of a Pennsylvania law regulating abortion, the three justices signing the controlling opinion – including Justice Kennedy – admitted that they didn’t necessarily think Roe was rightly decided to begin with.
They tried to fix some of Roe’s most glaring flaws – for example, by rejecting the trimester framework dividing pregnancy into three parts, with different rules for each. They shifted the basis for the right to abortion from privacy to liberty, producing the most laughable sentence of any modern court decision: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This bit of pop philosophy, of course, is also not in the Constitution.
And Supreme Court Justice Ruth Bader Ginsburg has said she would prefer to protect abortion under the Equal Protection Clause, guaranteeing women not only a right to abortion but a right to public funding for their choice.
But surely, when the court itself knows only what it wants but not where in the Constitution to fabricate a basis for it, we are a universe away from what our nation’s founders intended.
Even aside from the enormous moral issue at stake, then, no one should make support for Roe into a litmus test. Realizing how unwarranted it was and is might be a good test for a judge’s competence.
Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.