| By Curt Levey With the end of the Supreme Court’s term, Democrats are denouncing the court as ideologically motivated, extreme, undemocratic, even destabilizing. Their angst is understandable, but it’s misguided.It’s understandable because, until recently, progressives were able to rely on the court to achieve or ratify many of their most important policy goals. It’s misguided for at least two reasons. First, this court is not ideologically motivated — that is, committed to conservative outcomes. It is committed to a textualist approach that sometimes will produce outcomes that political conservatives cheer and sometimes will infuriate them.Second, Democratic warnings of a constitutional apocalypse — with the court supposedly poised to strip away Americans’ rights to contraception (Griswold v. Connecticut), homosexual sex (Lawrence v. Texas), same-sex marriage (Obergefell v. Hodges) and other rights not explicitly mentioned in the Constitution — are overblown. The court is not inclined to do any such thing.Any impression that conservatives could rely on this court for conservative outcomes was dispelled on the final day of the term. The court upheld the Biden administration’s repeal of President Trump’s “Remain in Mexico” policy. It also declined to review New York state’s vaccine mandate for health-care workers, which lacks a religious exemption.Given strong legal arguments on both sides of the “Remain in Mexico” debate, an ideologically motivated court could have found plenty of reasons to strike down the repeal. Instead, Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joined the court’s liberals in ruling it lawful, with Justice Amy Coney Barrett agreeing but for a procedural point. Similarly, the right-wing Supreme Court that Democrats imagine would have taken the vaccine case to cheers from conservatives. A few days earlier, the court disappointed law-and-order conservatives when it ruled 9 to 0 that convicting doctors allegedly operating opioid “pill mills” requires that they genuinely believed they were prescribing the medication improperly.These mixed results are best understood by recognizing that this court is reliably conservative in the jurisprudential sense, rather than the ideological sense. That is, the majority — rather than pursuing a conservative policy agenda — is focusing on the text and intent of statutes and the Constitution, in contrast to the more flexible “living Constitution” approach popular on the left. While that often results in decisions that please conservatives, this court is not afraid to rule otherwise when that’s where textualism — or originalism, as many call it — leads.And that’s how it should be. A court that never disappoints conservatives is likely a court that believes in a conservative version of the living Constitution.As the majority in Dobbs v. Jackson Women’s Health Organization notes, “Americans hold sharply conflicting views” on abortion policy, but the Constitution is silent on the issue. For the textualist justices, that is the bottom line.While textualism is not an exact science, it takes a lot of hand-waving to conjure up a right to abortion or even a broad right to privacy in the words of the Constitution, as written and amended. Nor can abortion rights be found among the common law rights that were implicitly incorporated into the Constitution. Roe v. Wade can’t change that fact. The issue must, therefore, be left to the democratic process.Textualism easily explains the court’s other conservative decisions this term as well. The Second Amendment explicitly guarantees “the right of the people to keep and bear Arms.” Likewise, the court’s decisions on religion and the administrative state are firmly grounded in the text and intent of the First Amendment and the Constitution’s placement of lawmaking authority in the hands of Congress.While this approach will often disappoint progressives, the rights to contraception and the like are in no danger. To start, the Dobbs decision cannot be used to undermine those rights because the court made clear that abortion is “critically different”; it involves ending what Roe called a “potential life” and “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”The parade of horribles trumpeted on the left assumes that the Dobbs majority has a hidden agenda to overturn other unenumerated rights. But there is no secret agenda. The conservative legal movement has been shouting for 40 years that Roe should be overruled. There are few if any voices in that movement calling to overrule Griswold, Lawrence or even the more recent Obergefell decision.Those three decisions resulted in or from profound changes in our culture and in popular opinion. Roe never stuck in the same way. Regardless of what the court says about Griswold and Lawrence, the democratic process would prevent any state from outlawing contraception or homosexual sex. Bans on either have moved outside the Overton window, and prohibition of same-sex marriage is quickly moving in that direction.What the future does hold is more controversial cases in the next Supreme Court term, including blockbuster cases on affirmative action and the power of state legislatures to set voting rules. Next term will tell us a lot more about the fortitude and vitality of this court’s conservative majority. I expect it will continue to be guided by principled textualism, fearing neither intense criticism from the left nor disappointment among some conservatives when those principles lead to liberal outcomes. |
