The Supreme Court’s job is to interpret the Constitution, not to legislate

By Matthew Gagnon

The current struggle over the Supreme Court began with the unexpected death of Justice Antonin Scalia in February of 2016. Prior to Scalia’s death, the court had a nominal conservative majority of five justices to four liberals, but after Mitch McConnell’s extreme gambit to keep Merrick Garland off the court, Donald Trump’s victory, Ruth Bader Ginsburg’s death, and the appointment of Neil Gorsuch, Brett Kavenaugh and Amy Coney Barrett, a firm and reliable six to three conservative majority now exists.

In the past few weeks we have begun to see the result of that ideological shift.  

In just the last seven days, landmark decisions have been handed down relating to school choice, gun control, religious expressions in school, and of course the biggest legal bomb of them all, the decision to overturn Roe v. Wade. 

In that decision, Justice Samuel Alito argued that “Roe was egregiously wrong from the start,” and that the original argument for it was “exceptionally weak.” Nevertheless, Roe — and with it Planned Parenthood v. Casey — were well-established precedents of the court, and as such there was a high bar for any decision to overturn. 

A high bar, but not an impossible one. “Stare decisis, the doctrine on which Casey’s controlling opinion was based,” Alito wrote, “does not compel unending adherence to Roe’s abuse of judicial authority.” Indeed stare decisis — literally meaning “to stand by things decided” — has a well-established set of factors, five in total, that are used by the court to decide whether or not to overrule a precedent.

Those factors are: the quality of the reasoning of the prior decision; the “workability” of the prior decision; the consistency of the decision with other, related decisions; whether the relevant facts underlying a decision have changed; and the reliance on the decision by other decisions and what happens in the real world. 

Alito and the majority attack Roe and Casey based on each of these factors. But ultimately there is one reason to overturn that stood above all others: the twisted use of a concept known as “substantive due process,” upon which Roe was built. 

Substantive due process is a legal principle whereby judges assume the authority to establish and protect new rights, despite those rights not being expressly stated in the Constitution. The Constitution, of course, makes no reference to abortion, and thus the decision in Roe relied on the majority’s belief that it should be legal. 

That was always a dangerous and very flimsy rationale for legalizing abortion nationwide. Even the famed liberal justice Ruth Bader Ginsburg, who was most definitely in favor of protecting abortion rights, had major apprehensions about Roe. She had critical words for the decision both before and after she joined the court, arguing that a more incremental approach, or a decision rooted in the Equal Protection Clause would have been a better and more durable way of establishing the right to an abortion, as opposed to the invented “right to privacy.” Something she was right about, of course. 

At the time, the weak basis of the decision didn’t matter to pro-choice activists, who cheered its legalization “by any means necessary.” They did so because abortion rights were a policy goal, and activists viewed the Supreme Court as a place where legislating toward desired outcomes was appropriate. 

But that isn’t the purpose of the court, nor should it ever be. In a 2012 interview with Piers Morgan, Justice Scalia was explaining why substantive due process was a faulty legal principle when Morgan interrupted him. “Should abortion be illegal, in your eyes?” he asked, failing to understand that the court is not a legislative body.

Scalia, clearly bewildered, replied calmly. “Regardless of whether you think prohibiting abortion is good, or whether you think prohibiting abortion is bad … regardless of how you come out on that, the Constitution does not say anything about it. It leaves it up to democratic choice.”

And about that, he is entirely right. Too often in this country, we have viewed the court as a means for getting what we want politically, rather than as an arbiter of what is and is not proscribed by the Constitution. 

If there are deficiencies in the document, of which there are undoubtedly many (perhaps you think the abortion issue is one), that can be remedied in some cases by legislation in Congress, or in others by the amendment process to the Constitution. 

That is what living in a constitutional republic is about, and undoing an indulgence of judicial activism is a very welcome occurrence, albeit 50 years too late.

Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.