Happy Mothers’ Day to all the mothers reading this! This picture is my daughter Whitney and her daughter Hadley (almost 10 months).
Although it may not seem like anything is going on in the world except for the leak of the first draft of the Supreme Court majority opinion in Dobbs, there actually has been a lot more taking place — but I’m going to start this loop by going back to Dobbs.
Must judges legislate?
My column on Friday referred to Roe v. Wade as the “high-water mark of the left at the Supreme Court.” I probably should explain that characterization. Basically, Roe was a piece of legislation disguised as a legal case. That practice generally ended in the 1970s, as this column by National Review’s Dan McLaughlin notes:
To pick one example, there was a very big shift at the end of the 1970s when the Court stopped just assuming that anybody could file lawsuits under any federal statute regardless of whether Congress actually created a right to file a lawsuit under the statute. That was an enormous sea change. You cite any case before then on this topic, and courts today just respond, “Well, those were the bad old days.” Back then, all it took to create a new federal cause of action was Justice Douglas, a bottle of bourbon, an afternoon, and a few paragraphs.
One person who wrote about that judicial/legislative approach was Judge Ruth Bader Ginsburg, who gave a speech about Roe that was then turned into an article (just before she was appointed to the Supreme Court). In the body, Ginsburg wrote this (footnotes omitted), which I want to quote at length:
“[J]udges do and must legislate,” Justice Holmes “recognize[d] without hesitation,” but “they can do so,” he cautioned, “only interstitially; they are confined from molar to molecular motions.” Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade. To illustrate my point, I have contrasted that breathtaking 1973 decision with the Court's more cautious dispositions, contemporaneous with Roe, in cases involving explicitly sex-based classifications, and will further develop that comparison here.
The seven to two judgment in Roe v. Wade declared “violative of the Due Process Clause of the Fourteenth Amendment” a Texas criminal abortion statute that intolerably shackled a woman's autonomy; the Texas law “except[ed] from criminality only a life-saving procedure on behalf of the [pregnant woman].” Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court's splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day . . . might have served to reduce rather than to fuel controversy. * * * *
Roe v. Wade [] invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court. In 1973, when Roe issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures “toward liberalization of abortion statutes.” That movement for legislative change ran parallel to another law revision effort then underway—the change from fault to no-fault divorce regimes, a reform that swept through the state legislatures and captured all of them by the mid-1980s.
No measured motion, the Roe decision left virtually no state with laws fully conforming to the Court's delineation of abortion regulation still permissible. Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.
Unfortunately, in this article Judge Ginsburg misunderstood Casey v. Planned Parenthood to be a more moderate legislative step than Roe was, which she wholly endorsed. But in her tenure on the Court, she made sure that Casey was not more moderate in practice. Then again, Justice Ginsburg fully supported the idea of SCOTUS as a legislative body as part of a “living Constitution” and she included several quotes from Professor Norman Dorsen’s “The Evolving Constitution”.
But was Justice Holmes correct? Must judges legislate?
The current consensus answer is “no”. Part of including all of this discussion is to provide a preface for David French’s article on the first draft of the Dobbs opinion published in The Atlantic, entitled “What Alito Got Right.” French, a legal columnist and former Army officer who will re-appear later in this column, has one essential takeaway about the Alito opinion, where it differs from Ginsburg’s speech:
First, it’s important to understand the question before the Supreme Court. It is not “Should American women possess a right to abortion?” but “Does the American Constitution protect abortion rights?” The distinction is of paramount importance. The Court’s job is not to determine which rights we should possess but rather the rights we do possess. * * * *
Here is where the differences between conservative and progressive jurists are perhaps starkest. Going back to Justice Ginsburg’s 1992 remarks, she argued (quoting Oliver Wendell Holmes) that “judges do and must legislate.” Even though Justice Ginsburg argued for a change slower and more interstitial than Roe, conservative justices such as Alito would still strenuously disagree.
Instead, enacting legal change is precisely the role of the people’s elected representatives. Legislation is for the legislature, and if the people of the United States want to create a right to abortion, they have that power. They had that power before Roe, and if Alito’s opinion holds, they will still have that power.
I’ve long contended that a legislative legalization of abortion would be less comprehensive than the sweeping rights granted by SCOTUS in Roe and Casey, but it would become generally accepted over a short period of time, just as same-sex marriage has become. In fact, I remember arguing about that with people back in the 1980s and early 1990s, before Casey froze abortion jurisprudence in a maximalist position for the next 30 years. Maybe now we’ll finally learn whether I was right back then.
Unfortunately, the Dobbs opinion also provides evidence that the “Brain Drain” continues from Congress. Current Democratic Senator and former presidential candidate Amy Klobuchar stated on ABC’s Sunday news program that the Dobbs opinion was “literally not just taking us back to the 1950s, he’s taking us back to [the] 1850s.” She goes on to ask, “[W]ho should make this decision? Should it be a woman and her doctor or a politician?” Apparently Klobuchar thinks that judges who legislate are not politicians, at least if their legislative actions are ones of which she approves. Klobuchar claims to be a law graduate of the University of Chicago, but perhaps she failed to take Constitutional Law while she was there. I wish her luck back in the 1850s, when she wouldn’t have had the right to vote — or generally to work outside of the house.
UPDATE on May 9: A libertarian writer whom I have long respected, Cathy Young, posted a fairly long article in The Bulwark about the political (not legal) situation that the Dobbs decision (if it is finalized in current form) will create, and I want to acknowledge that she comes to the same take that I do about some parts of it and a very different take than I do about other parts of it:
But striking down Roe will not magically time-warp us back to 1973. The polarization and radicalization will still be here.
In 1973, no one was proposing bills that would keep women from traveling out of state to get an abortion, or penalize companies that cover the costs of such travel for their co-workers. But that’s what’s happening today.
The majority of Americans may be moderate on the subject of abortion (and much else). But at the moment, our system seems to favor the capture of each party by the radical portion of its base. Will the end of Roe erode this capture on the abortion issue and bring us to a sane middle? (Which may look a great deal like the Mississippi 15-week law, actually.) Maybe eventually, things will shake themselves out—but not before a rush to enact extreme measures that could make the abortion wars of the last 50 years look like a picnic.
We shall see.
SECOND UPDATE on May 9: In response to the proposed law that Cathy Young mentions above that would restrict travel between states for purposes of procuring an abortion, libertarian law professor Eugene Volokh of The Volokh Conspiracy proposes a federal statute protecting the right to travel between states, which, for the reasons Volokh mentions, would clearly fit within Congress’s Constitutionally-defined powers. It amazes me that such a statute would become necessary in the United States, but such are the times we live in.
OK, this is my last update to this existing post; I’ll have a new Quick Loop post tomorrow and note in it that I made two updates to this discussion. But I’m going to try to move on from rehashing Dobbs therein, except for one further discussion about Supreme Court leaks in recent years — at least until we get a final opinion from the Court in Dobbs. By the way, for those people interested in Court procedure, the Court took last week off after it released two opinions on Monday, May 2 — which seems to be why the leak came out at the end of that day. The court’s next get-together is a justices-only conference this Thursday, May 12 . . . and what I wouldn’t give to be a fly on the wall at that session.
The Great Patriotic War and Nuremberg
May 8 (today) is the 77th anniversary of Germany’s surrender in WWII. Russia celebrates the anniversary tomorrow, in a victory parade for what it calls The Great Patriotic War. Right now, Russia is engaged in a very similar war of aggression against Ukraine . . . and Sky News in the U.K. reports that British Minister of Defense Ben Wallace will give a speech tomorrow equating the current generation of Russian leaders to the German leaders, and calling for the Russians to face a modern equivalent of the Nuremburg (Nürnberg) Trials for their war crimes:
According to extracts briefed to the Telegraph and Times, Mr Wallace will say: "Through their invasion of Ukraine, Putin, his inner circle and generals are now mirroring the fascism and tyranny of 70 years ago, repeating the errors of last century's totalitarian regimes."
He will add: "Their fate must also, surely, eventually be the same."
Of course, before that can happen, Russia has to lose its war to conquer Ukraine. Will that happen? If Western support for Ukraine is any indication, it will.
In the most important photo opportunity from yesterday, American First Lady Jill Biden, the member of the Biden household less prone to gaffes, visited Ukraine for Mothers’ Day, being photographed with Ukrainian First Lady Olena Zelenska, who was making her first public appearance since the start of the war, at a converted school in Uzhhorod (about 15 miles inside Ukraine from its border with NATO and EU member Slovakia). Canadian Prime Minister Justin Trudeau also visited Ukraine, stopping at the recaptured Ukrainian town of Irpin to see firsthand the damage left behind by Russian occupation and pose for shots that his constituents will see on TV.
But in the more symbolic news from yesterday, U2 members Bono and The Edge played a makeshift acoustic concert in a subway station turned bomb shelter in Kyiv and also visited the mass grave of Russian war crime victims in the Kyiv suburb of Bucha.
And in the actual most important news from yesterday (other than more civilian deaths inflicted by Russian bombs), the Group of 7 nations (U.S., Canada, U.K., France, Germany, Italy, Japan, along with the European Union) voted to phase out or ban the imports of Russian oil, although the timeline is still to be established. Without its oil and gas wealth, Russia would still be huge, but its economy would be closer to Pakistan’s than to the western democracies.
As a result, there has been speculation that Russian dictator Vladimir Putin would order a general mobilization of Russia as part of his speech tomorrow. There are consequences either way, as ABC News noted:
Ukraine, Western countries and many experts fear Putin might use Victory Day to declare a national mobilization — without which many military analysts doubt Russia can achieve even its already-curtailed goals in Ukraine.
If Putin does not use Victory Day to declare a general mobilization, that could suggest the Kremlin doesn’t believe it has the political strength at home right now to do so.
We’ll know in a few hours.
The Christian Life
No, I’m not referring to the song by the Louvin Brothers that was covered by The Byrds. Instead, this is a link to another column by David French, who is also an evangelical Christian worried by the trend among evangelicals toward what French refers to as “moral devolution”, abandoning Christian virtues as they convince themselves that current American culture has become increasingly hostile to their values, moving from a “neutral world” to a “negative world.” French himself openly scoffed at this viewpoint, asking, “Where was this idealized past?” Having attended Harvard Law at about the same time as French, I second the questions he asks in that regard (and I’m religiously agnostic, not evangelical like French, but I saw the same things he did).
In classical mythology, Cassandra was cursed to utter true prophesies but always to be disbelieved. French may be this generation’s Cassandra. He has succeeded in becoming incredibly unpopular with both the far left and the far right. The far left hates him because he was a very successful First Amendment lawyer in religious cases before becoming a pundit, and he is still a pro-life classical liberal. And he and his wife are evangelical, which produces its own share of hate. The far right hates him as an apostate, because he is vociferously opposed to The Former Guy and also directs much of his commentary toward criticizing the failings of his fellow evangelicals instead of just pumping out “Let’s Go Brandon” columns over and over again. Oh, and he and his wife have three children, two biological children and an adopted daughter from Ethiopia, which has been included in the on-line abuse from the far right.
But, as this wonderful column and example from David’s wife Nancy shows, there is a major difference between online hate and real hate. Or at least there should be, because all of the apocalyptic bleatings from both the far left and far right don’t take into account that there are real people behind these online personas. As Nancy writes:
A lack of love is our real problem, for which the lack of civility is just a symptom. We know how to love; we simply withhold it from those we deem unlovable. Mysteriously, in 2021, those people all seem to belong to the other political party.
As someone who has become politically independent as a result of the current apocalyptic nonsense, Nancy’s column seems like very good advice. You might even say that it’s the right way to live “the Christian life”, even for a non-Christian like me.
How about the Jewish life? Or the Muslim life? Or the Hindu life? Or the Buddhist life? Same deal. My use of the one religion is simply motivated by the song linked above, not by a sense that any one is superior to the others. Your mileage may vary.
Lon Fuller in the Caves
In an online discussion yesterday, I likened Robert Bork at Yale Law in the 1960s and 1970s to Lon Fuller at Harvard Law in the 1940s and 1950s. I unfortunately never met either of them, but of course I’ve heard a lot about both. Bork’s memory hasn’t faded, since the current originalist/textualist movement is his legacy. Fuller was a champion of natural law being divorced from any religious morality, which is now largely accepted, but otherwise he has been largely forgotten.
There are times that I would like to just turn this page into an introduction to various legal philosophies, but I’m not really all that interested in legal philosophy, so I’d get bored if I did that. But mentioning Fuller made me think of his legendary example of legal philosophy: The Case of the Speluncean Explorers. The linked Wikipedia article lays the facts of the case out in relevant detail, but here’s the summary:
The case involves five explorers who are caved in following a landslide. They learn via intermittent radio contact that, without food, they are likely to starve to death before they can be rescued. They decide to engage in cannibalism, and select one of their number to be killed and eaten so that the others may survive. They decide who should be killed by throwing a pair of dice. After the four survivors are rescued, they are charged and found guilty of the murder of the fifth explorer. If their appeal to the Supreme Court of Newgarth fails, they face a mandatory death sentence. Although the wording of the statute is clear and unambiguous, there is intense public pressure for the men to avoid facing the death penalty.
The article offers five possible judicial responses. Each differs in its reasoning and on whether the survivors should be found guilty of breaching the law. Two judges affirm the convictions, emphasising the importance of the separation of powers and literal approach to statutory interpretation. Two other judges overturn the convictions; one focuses on "common sense" and the popular will while the other uses arguments drawn from the natural law tradition, emphasizing the purposive approach. A fifth judge, who is unable to reach a conclusion, recuses himself. As the Court's decision is a tie, the original convictions are upheld and the men are sentenced to death.
No, this was not the basis for the Rupert Holmes 1960s song “Timothy”.
For those people wondering about their own position on jurisprudence, I recommend reading the Wikipedia article and thinking some about it, including all of the competing rationales proposed by the various judges. Part of the issue is how much a judge wants to take into account non-judicial rationales, and (keeping in mind that this case takes place in the fictional location of Newgarth, not the United States) part of the issue is how much effect natural law considerations should be given.
I can’t say that I enjoyed the discussions about this example in law school, but I learned from them to be more focused in what I believed. For those of you who read through it (if you prefer to read the original article instead of the Wikipedia summary, it is linked here), may you have the same experience.
Be seeing you.