Judge Wapner lives! (In principle, anyway.) American civics education … not so much. Bloomberg’s senior political editor John Haltiwanger expressed his dismay over the Dobbs ruling today on Twitter by claiming that the Supreme Court had not done its duty by, er … following public opinion.
Haltiwanger isn’t the only person confused today about what the judiciary does in the American form of government, not even among media outlets, but he’s one of the most direct about it. So let’s continue the civics lesson that even many of our elite appear to lack:
The court is clearly not representative of the US public. It's supposed to be the people's court. https://t.co/MbEhpahhBp
— John Haltiwanger (@jchaltiwanger) June 24, 2022
The US government exists to serve its citizens. That's enshrined in the preamble of the Constitution. To suggest the Supreme Court, which is the guardian of the Constitution, is not meant to serve the people/shouldn't be representative of the people is fundamentally wrong.
— John Haltiwanger (@jchaltiwanger) June 24, 2022
Where does one start? First off, the word “serve” doesn’t appear in the preamble of the Constitution. Neither does the word “government,” nor the word “citizen.” Other than that, Bloomberg’s senior editor really hits the bulls-eye.
But let’s go with that concept anyway. The premise that the government exists to serve its citizens is accurate in a very general and ambiguous way, but the same Constitution much more explicitly restricts the federal government in its jurisdiction and authority to do so, especially in what each branch can do. The Supreme Court and the entire federal judiciary operate under Article III as a co-equal branch to Congress (Article I) and the executive (Article II). The authority and purpose of the court is encompassed in Section 2:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Nothing in here directs the court to impose policy based on the will of “the people.” In fact, “the people” don’t get a mention in Article II. Their authority only extends to ruling in cases based on the laws passed by Congress and signed by a president, and to ensure that those abide by the Constitution’s text. It is clearly not a “people’s branch.” That status goes to the legislative branch established in Article I, especially in Section 8’s final clause:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The branch that “serves the people” on policy is the legislature, not the judiciary. The Constitution separates those powers, very explicitly regarding acts of attainder, in order to keep popular pressure off of the rule of law.
Why is it important to recite what should be American Civics 101? The constitutional order of separation of powers is, in fact, the point that Justice Samuel Alito makes in his Dobbs decision. The problem with Roe is that it was essentially a judicial usurpation of legislative authority, both in form and in principle. The Roe court took an issue that had no basis in the Constitution in either text or authority, and created a legislative policy through judicial fiat that overstepped its constitutional limits:
For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law). After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature.
Under this scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at which a fetus was thought to achieve “viability,” i.e., the ability to survive outside the womb. Although the Court acknowledged that States had a legitimate interest in protecting “potential life,”1 it found that this interest could not justify any restriction on previability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning. One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court end[ed] up drafting” if he were “a legislator,” but his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave “almost no sense of an obligation to try to be.”2
At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State.
Had the critics of this decision bothered to actually read it, they would find that Alito’s decision didn’t outlaw abortion. It instead restored the court’s deference to the Constitution — and to the People that Haltiwanger professes to defend — by vacating Roe and its antecedents to return the issue to the states and its legislatures. Alito’s conclusion:
We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
The People won! The alternative to this would be the continuing operation of the Supreme Court as a quasi-legislature with no accountability to The People. Policy decisions belong to the elected branches of government, where accountability for those policies and their execution can be exercised properly. We got into this position because the Roe court decided it could legislate better than the states.
That usurpation has had enormous consequences to constitutional order over the last 49 years, too. Before Roe, judicial nominations and confirmations were sleepy affairs, only controversial when incompetence or corruption intruded on it. For the last 35 years, however, the confirmation process has turned into a bloodsport hinging on one question — whether nominees would continue the court’s abortion policies. That process became the only method of accountability for a contentious policy, thanks to the star-chamber regime imposed by the Roe and Casey courts that all but negated any rational and actual balancing of interests. It got so bad that presidents of both parties have employed sotto voce litmus tests on judicial appointments … and sometimes not so sotto voce at that … rather than on responsible Article III jurisprudence.
With this policy issue restored to the proper constitutional order, that poison can finally if slowly be withdrawn from the body politic. Legislatures will now be able to craft policies that better reflect their constituencies, with the appropriate accountability through the people’s political processes. If they overreach in one way or another, citizens can punish them at the ballot box and amend laws to better reflect the political consensus. That is precisely how the government exists to “serve its citizens” — by allowing for self-governance rather than edicts from star chambers.
If you really do want a People’s Court, though, have I got good news for you.