By Shaun Kenney May 4, 2022
Justice Stephen Breyer isn’t exactly a conservative, but his words of caution on the limits of judicial review are worth noting
Justice Stephen Breyer entitled a very short book based on a talk he gave for the 2021 Scalia Lecture at Harvard Law on this very topic — the limits of the authority of the judicial branch and the peril of partisanship on both its independence and collegiality.
To give you an idea of how deep and faithful fellow members of the US Supreme Court are to one another — former Justice Antonin Scalia used to buy roses for former Justice Ruth Bader Ginsberg on her birthday despite their deep and fundamental disagreements on any number of questions — Breyer saw absolutely no contradiction in attending a conference named in honor of the Court’s arch-conservative originalist.
That such a line even has to be explained in a post-truth society where freedom of speech is on the brink should make most of us recoil. Yet for a certain set of Americans under the age of 30, the very idea of attending such a speech (Breyer) honoring such a man (Scalia) is repellent to the point of visceral.
Breyer’s remarks are marvelously succinct in a rather inexpensive book and certainly worth the read. Breyer focuses on two tumultuous times during the recent history of the US Supreme Court — the 1930s New Deal era and the 1950s civil rights era. During the 1930s, Roosevelt attempted to push through a series of unconstitutional changes to US labor law, all dutifully struck down by the SCOTUS. FDR famously threatened to pack the courts to no avail, and yet by the late 1930s the SCOTUS had come around on labor relations, granting the federal government the wide and sweeping powers it had arrogated and been denied in the early 1930s.
Similarly in 1954, the US Supreme Court ruled on Brown v. Board of Education that the earlier system of separate but equal was a violation of 14A provisions guaranteeing each person an equal protection under the laws. Yet as Breyer notes, virtually nothing changed in the South in 1955. Or 1956. Either Congress nor the White House nor various state legislatures did anything to enforce the Court’s decision — that is until 1957, when President Eisenhower sent in the 101st Airborne Division and had paratroopers escort nine brave children through the mob. Did the US Supreme Court win? Yes, argues Breyer, but only with the co-operation of another branch of government (in this instance, the federal executive).
Yet this did not end the argument. Rather than complying with the new status quo, Breyer notes, Arkansas simply closed their public schools. It would take until the late 1960s — and in Virginia as late as 1975 — for public education to finally desegregate. Simply issuing the ruling, says Breyer, didn’t end segregation at a stroke. Ending segregation still took time — and one other ingredient.
Thus Breyer questions whether or not the US Supreme Court alone actually played a major role in ending segregation. For insight, Breyer turns to Vernon Jones, who argues that without the Brown decision certainly nothing could be done before hand, but at the very least the SCOTUS provided the catalyst so that the civil rights era could move forward against the legal architecture of racism.
In the final analysis, Breyer argues that the justice of the court’s decision increased respect for the Court and reinforced its authority. Or as Breyer explains:
Together with the president, civil rights leaders, and a great many ordinary citizens, the Court had won a major victory for constitutional law, for equality, and above all for justice itself. And in turn, justice itself — the justice of the Court’s integration decisions — helped to promote respect for the Court and increased its authority. I cannot prove this assertion. But I fervently believe it.
Breyer then goes on to address the problem of partisanship within the judicial system, starting with Bush v. Gore (2000) and then skating over the myriad arguments that are heard before the courts. More concerning to Breyer isn’t the substance of the disagreements, but rather the sentiment that when SCOTUS does rule — or is forced to rule — on a particular question, that the ruling is not trusted by the American political class and how this chips away at the rule of law:
Whether particular decisions are right or wrong, however, is not the issue here. Nor is the validity of different approaches to legal or constitutional interpretation. Rather, I am discussing the general tendency of the public to respect and to follow judicial decisions, a habit developed over the course of American history.
. . .
The rule of law is not a meal that can be ordered a la carte. Let my examples warn against taking public acceptance of the Court’s authority for granted.
Breyer is keen to exhibit an unwillingness to allow political questions to be foisted on the US Supreme Court as if it were a legislature of last resort. In a strike against judicial activism, Breyer argues that political questions should and ought to be determined by legislative process, with the role of the courts determining whether the laws are constitutionally imposed.
Yet Breyer is much more engrossed in the idea of the politicization of the courts, namely whether the American public perceives the judicial system to be a part of the political arena.
There is a distance between jurisprudence and politics Breyer wants to preserve in a way that politicians rarely — if ever — have the same obligation, and that is to the preservation of the institutions themselves rather than their mere political orientation. Could the US Supreme Court have ruled correctly on Brown v. Board of Education if they were preoccupied with political punditry or public opinion? Breyer notes the distance between Brown and Loving v. Virginia — a 13-year interlude where only then did the Court feel public opinion had shifted to a degree that would accept the Court overturning one of the last vestiges of the progressive era’s morbid fascination with eugenics and racial hygiene. Breyer suggests that — if political considerations were the superior metric — that the considerations of justice would be ameliorated by the political, rendering wisdom subservient to prudence. Not enough juris and too much prudence, so it seems.
Yet the inconsistencies in the Court’s rulings over time — sometimes appearing conservative in cases such as Bush, sometimes upholding things such as Obamacare or as recently as 2020 upholding precedents affirming the right to an abortion in June Medical Services v. Russo — serve to remind the political class that the judicial branch does not see itself as a political institution, but rather as an institution whose rulings have political consequences.
Breyer offers a few unconvincing if well-intentioned viewpoints to help cool political and partisan passions when viewing jurisprudence. Deliberation, compromise, and maintaining a broad perspective rather than producing an immediate gain or outcome all factor in. Education, participation, and practice in co-operation and compromise remain solutions for Breyer — yet all three of these seem as luxuries rather than necessities in a postmodern context.
This problem where the courts are weaponized as an ongoing constitutional convention creating “rights” out of a penumbra as a shortcut to education, participation, deliberation, compromise and perspective that legislatures ought to perform simply isn’t enough for a political class that inherently believes such frameworks are inherently racist, bigoted, class-oriented and biased — and it is notably a weakening in which Breyer (perhaps with some reflection) has sadly participated and contributed.
It is this precise problem that Justice Samuel Alito seems to be attempting to resolve in the draft ruling of Hobbs v. Jackson by targeting two questions: (1) whether the question of abortion should become a legislative rather than a judicial effort, and (2) whether or not legal personhood and the basic right to exist as defined by the 14A should extend to all persons no matter what their stage of development — and now.
The draft text — dated 10 February 2022 — may not represent the final reasoning or decision of the US Supreme Court. Yet it does indicate that the conservative justices are willing to target the architecture of Roe v. Wade (1973) while turning the decision back to the states — parallels to Dred Scott v. Sandford (1857) which devolved the question of enslavement to the states notwithstanding.
Charitably I would suggest the following: Alito and the conservative justices are sympathetic to a 14A understanding of human personhood that would specifically ban the practice of abortion, yet understand Breyer’s wider argument that such civil rights arguments — if the public is not ready to assent to such rulings — may be not only unenforceable but contribute to the weakening of the US Supreme Court as a public institution and final interpreter of the US Constitution as a political framework. Therefore, Alito et al. are focusing on the meat of Breyer’s objections to the present system in toto — targeting the judicial activism that made Roe possible while yielding to the reasoning Breyer introduces regarding Brown — specifically that if one believes the basic right to exist is justice itself then the end state enshrined in the 14A will develop much as any photograph yields a photo when dropped into a liquid developer provided process triumphs over partisanship.
A just ruling might prevail in the end, but it may take 20 years to do so.
And yet there is a counterpunch. And it is the same counterpunch one would apply to incorrect decisions of the Court such as Brown or Plessy — namely that a justice delayed is indeed a justice denied.
If Brown had ruled that there was no federal right to equal protection and devolved the question to the states — a repeat of Dred Scott only instead of enslavement it is segregation — would anyone deem such a ruling to be justice itself? One strongly doubts this. If anyone heard a ruling that devolved child sex trafficking to the state legislatures, would anyone deem this to be justice itself?
In this, the Fourteenth Amendment is clear:
No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Personhood is defined by scientific consensus as the very moment of fertilization — that is when you become you. Every human person has the basic right to exist. This is the foundation of our understanding of justice both social and moral. Without this basic foundation, none of our other concepts of justice itself (or droite — from where we get the understanding of law) exist.
This is our Constitution. That is the argument.
Notice there is no invocation to God required to establish these natural rights. Neither is there a religious test nor any element of coercion to demonstrate what Americans believe to be a self-evident truth. Either we believe that such a right is sacred, or we manufacture a framework where personal autonomy becomes the highest moral good and violence and self-abuse become the cornerstone of our law.
How has that worked out for us over the last five decades? 70 million dead babies, a culture that abuses and androgenizes women for sexual pleasure, where men have turned into bros and bully women into the unthinkable, where mutual abuse and manipulation is defined as a healthy relationship, where material gain is put ahead of family, and where the unfulfilling chase for momentary pleasures substitute for any lasting happiness. Love becomes use, respect becomes indifference, and mental illness becomes so prevalent as to earn the title normal.
None of this is normal, folks.
Hence we have two conflicting sets of rights. One the one hand, most pro-lifers believe in the basic justice of the right to exist as the foundation of all other forms of justice — moral or social. Alternatively, there exists the right to personal autonomy which argues that you are a property unto yourself and that no government nor other person has a right to your person.
The problem for the latter argument, of course, is that we are not ends unto ourselves — hence demands are made on our personal autonomy all the time (e.g. the draft, taxation, child support, obeying traffic laws, ad infinitum). The problem for the former argument is that recognizing that we all have the basic right to exist implies other arguments as well — providing access to health care, sound education, honorable wages, an opposition to racism and partiality, and all the other things we call beatitudes.
Neither political party gets it entirely right — one party gets it way more right than the other — but there are hopes that we can at least now talk about what we value and why.
The reason why I mention Justice Breyer’s book — and it is again quite short and masterfully considered — is that Breyer offers us a cautionary tale about the dangers of a judiciary taking strides where the American public has not been acclimated to the demands of justice itself.
Alito’s draft ruling is perhaps best considered as an effort to do precisely that. Insofar as Roe v. Wade, a schematic presiding over the murder of 70 million babies and enshrining such a thing as a natural right with claims to justice is over, just as surely as slavery and segregation. Pro-lifers now enter a Dred Scott era where the moral droite of the basic right to exist and a recognition of the 14A’s provisions for equal protection now are balkanized to the state legislatures — which in my mind is a certain kind of defeat, yet to others will seem like a sort of progress.
For those who passionately believe in the right to personal autonomy, the devolution of what was considered to be a sacred (sic) right to the state legislatures now means that their arguments can no longer rely on worn out lines such as “Roe is settled law” or “protecting a right to choose abortion” — now the arguments must be thoughtfully laid forth and dispassionately reasoned.
One remains unconvinced that they will be able to do so.
For those of us who continue to work towards a culture that respects the dignity of every human person, the hard work of the next 20 years is going to be much like the hard work of the previous civil rights era in the wake of Brown v. Board of Education, where despite the justice of our cause, the sentiments of a nation towards Breyer’s idea of justice itself must be worked out.
This will not be a political contest, but a spiritual one — and spiritual in the sense of the soul. Plato reminds us that for a moral people, the laws — again, droite — are written on their hearts. Maybe that will take 20 years, but if we truly believe that our values represent justice itself then the argument has and must be a continued demand for the total legal recognition of human personhood from our earliest moments to natural death.
Justice demands no less.
One other parting thought. The temptation to draw lines and simply shout at others is going to prove irresistible. The three greatest problems we have in our postmodern age when it comes to the political commons is as follows:
- We do not trust one another anymore.
- We cannot disagree without being disagreeable.
- We cannot state the other’s argument in its best possible light.
Make an effort to trust the other person; they are made in the imago Dei same as you are. Make an effort to disagree without being disagreeable; you might learn something. Make the effort to try to state the other person’s argument in its best possible light, and then ask them to do likewise.
As the left is discovering to their own horror, merely pushing outcomes through judicial fiat has its comeuppance. But we have to learn a different sort of politics to get to a better sort of justice. That remains the great task ahead.
Shaun Kenney is the editor of The Republican Standard, former chairman of the Board of Supervisors for Fluvanna County, and a former executive director of the Republican Party of Virginia.