Activist Judges

It’s almost quaint to remember, a decade ago, the standing complaint within the Republican Party that the Democrats were relying too much on “judicial activism” to enact policy. Complaints about so-called activist judges became part of the standard rhetoric, and it continues to this day: Senate Minority Leader Mitch McConnell had the gall to cite what he said was Ketanji Brown Jackson’s history of “judicial activism” as a reason he voted against her appointment to the Supreme Court.

“We’ve seen over and over that when judicial activism triumphs over fidelity to the rule of law, our courts mutate, mutate into clumsy proxy battlefields for arguments that belong in this chamber and out in 50 state legislatures,” McConnell was quoted as saying prior to her appointment. “This is unfair to the American people. It damages our institutions, not the least the courts themselves.”

Expecting a principled position from Mitch McConnell is truly pointless, but let’s pause for a moment to parse this position, which is breathtaking in its audacity.

His stance fits the Alito decision, which would eliminate the federal right to abortion access that has been in place for nearly 50 years, throwing the issue to 50 state legislatures. Purely on a “states’ rights” level, Roe v. Wade was always an outrage to Republicans, who knew that any federal attempt to legislate the issue, in either direction, would be doomed. The court ruling resolved that, saying that there was a constitutional right at stake — a woman’s right to privacy.

That’s about to be wiped away. It was, in fact, a clumsily constructed decision, but for a half century it was the last word on an intractable social issue, and it kept abortions legal and women safe. It was precedent, and it seemed to be settled law. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all appointed by President Donald Trump, were cagey at their Senate confirmation hearings, stressing Roe v. Wade’s status as precedent and settled law, never acknowledging that they were willing, as Supreme Court justices, to take the unusual step of overturning past decisions on such a monumental social issue.

As we now know, they are, and likely will. And what will follow has little precedence in modern American history: a Supreme Court ruling revoking rights from half the population, based largely on the idea that the Constitution does not specifically grant the right to abortion. This “originalist” philosophy — that the court should interpret the founding document according to how its language was understood at the time it was adopted — has always had its defenders on the court. But now it’s going to be the guiding principle of American law.

This is “judicial activism” at the extreme, and it’s reasonable to wonder what rulings will follow. Around the same time as the Supreme Court is expected to overturn Roe v. Wade’s protections, it will rule in another case, New York State Rifle & Pistol Association Inc., et al. v. Bruen, which relates to gun control laws. It likely will not stand firm that the U.S. Constitution in 1787 and the Bill of Rights in 1791 envisioned muskets used by militia, not handguns and assault weapons.

But the bigger fear, of course, is the slurry of church and state involved in the pending overturning of Roe v. Wade. At its heart, the debate over abortion involves when a fetus becomes a person. Is it at conception, when cells are first beginning to divide? At fetal viability outside the mother? At some random point between? Science plays only a minor role here — this is a moral debate, even a religious one. For 50 years, the law of the land has allowed for individuals to settle this difficult question themselves, because the first words of the First Amendment are: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Once that has changed this summer, once the new precedent is set — there is no precedent if we decide there isn’t — so much else is in play. Once morality and religion become part of the equation in the Supreme Court, LGBTQ rights, same-sex marriage and contraception, all “settled law,” are potential next steps.

Margaret Atwood, a Canadian author who wrote “The Handmaid’s Tale,” recently penned an essay in The Atlantic about that work, which envisioned “a theocratic dictatorship based on 17th century New England Puritan religious tenets and jurisprudence.” “I stopped writing it several times, because I considered it too far-fetched,” she said. “Silly me.”

As she noted, the problem with originalism is that the Constitution doesn’t mention abortion — because it doesn’t mention women at all. Alarmingly, Alito’s draft opinion went back further, to 17th century jurist Sir Matthew Hale, who, ProPublica has noted, “was considered misogynistic even by his era’s notably low standards.”

“If Justice Alito wants you to be governed by the laws of the 17th century,” Atwood said, “you should take a close look at that century. Is that when you want to live?”