Many across America breathed a sigh of relief April 21 when the US Supreme Court allowed continued distribution of abortion drug mifepristone for now. A decision the other way would have significantly impacted the health of millions of women.
While some claim the Roberts Court’s abortion decisions are political, they actually haven’t been political enough. Contrary to conventional wisdom, what we need right now is a more political Supreme Court.
A political court isn’t one where justices should follow their personal political opinions in their decisions. Instead, it’s a court that’s attuned to politics and public opinion and mindful of the political consequences or impact of its decisions. The most successful chief justices and their courts didn’t stray far from public opinion.
The current court’s problem is its near-willful blindness to public trust and opinion—the sources of its institutional legitimacy. By disregarding both, the court is damaging itself.
The myth of an apolitical court goes back to the 1787 drafting of the US Constitution. In Federalist Paper No. 78, Alexander Hamilton famously described the Supreme Court as the “least dangerous branch,” contending that its power consists of “neither FORCE nor WILL, but merely judgment.” He discussed the means of appointment for the court, arguing that its independence is critical to its ability to stand above politics.
Hamilton’s myth of judicial neutrality still captures the imagination of lawyers. It’s at the center of law school teaching, where little if any time is spent discussing the political factors that influence justices and their decisions.
Justice Oliver Wendell Holmes Jr. attacked this legal formalism—that somehow law is divorced from the broader currents of society—in 1881 when he wrote, “The life of the law has not been logic; it has been experience.”
The worst decisions or periods in the Supreme Court’s history were when it failed to break out of its legal formalism and ignored the political consequences of its decisions. For example, in 1857 the Supreme Court held in Dred Scott v. Sanford that according to the intent of the constitutional framers, slaves were property and could never be persons with rights. The decision invalidated the Missouri Compromise, precipitating the Civil War.
In 1905, in Lochner v. New York, the high court declared unconstitutional a state law regulating working conditions for bakers. It came during the Progressive era when legislatures across the country were seeking to regulate the economy in the face of abusive trusts and monopolies.
The 1918 Hammer v. Dagenhart decision struck down child labor laws, and Schechter Poultry v. United States was one of many cases where the court invalidated parts of the New Deal and government efforts to pull the nation out of the Great Depression.
These cases, along with Bowers v. Hardwick, which allowed for criminalization of homosexuality, and Citizens United v. FEC, which deregulated corporate spending in politics, represent cases where the court ignored public opinion regardless of their societal impact.
There is a difference between ignoring public opinion and protecting individual rights in the face of majority opposition. In decisions such as Brown v. Board of Education and Obergefell v. Hodges, the court came to the defense of individual rights as a check upon discriminatory practices at times when public opinion was evolving, but discrimination still had a strong hold in the nation.
At its best, the court is a moral leader, appealing to an evolving set of values that protect liberty and equality.
Harlan Fiske Stone, Earl Warren, and Warren Burger were among the best Supreme Court chief justices. Beyond their legal skills they were politically savvy and cognizant of real-world consequences of the decisions they reached. They had an ear for how the political world was changing, and how the law should follow.
This takes us to the Roberts court. My research suggests it’s on pace to reverse more constitutional precedents than any other court in history. Chief Justice John Roberts has sought to incrementally move the court in a more conservative direction, but the majority of the court has pushed for dramatic reversals of precedent.
Unlike the Rehnquist court in Planned Parenthood v. Casey, which appealed to settled expectations as a basis for upholding Roe v. Wade and abortion rights, the Roberts court in Dobbs v. Jackson rejected such expectations as unimportant.
Some current justices, especially Justices Clarence Thomas and Samuel Alito, seem tone deaf to how the Dobbs decision, for example, defied public opinion. Increasingly public opinion sees the Supreme Court as acting ideologically, and, as a result, trust in it has crashed.
Many in the public perceive this court as acting politically when justices act based on their own views. In the Roberts court, the conservative majority appeals to some form of originalism, intent of framers, or constitutional literalism that’s at odds with public opinion and often seems like a thin veil for their own political perspectives. The court has moved out of step with public opinion on many issues, including guns and money in politics.
An old adage says the court follows election returns. While perhaps not completely accurate, it bears a kernel of wisdom. It’s time for the current court to be more political—by understanding how it’s a political institution with political actors, rendering decisions with political consequences.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
David Schultz is a professor of political science and legal studies at Hamline University and a professor of law at University of Minnesota.
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