The Supreme Court’s opinion in Dobbs v. Jackson Woman’s Health Organization rests on premises that mark the beginning of the end of the Constitution and the rule of law.
The United States Constitution represented a break in history. It enshrined rights and principles of government that could not be altered by the legislative or executive branches except with supermajorities required for a constitutional amendment; i.e., two-thirds of the House and Senate and three-fourths of the states.
The Constitution’s architects distrusted the political branches based on experience with British monarchs, parliament, and colonial assemblies, such as oppressive writs of assistance. An independent, non-elected Supreme Court was established to arrest democratic passions or impulses that instinctively pursue power at any cost.
In defending the Bill of Rights, Madison elaborated: “If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.”
Former Chief Justice William Rehnquist saluted judicial independence as the Constitution’s “crown jewel” and Associate Justice Ruth Bader Ginsburg agreed with that characterization. Contrary to Dobbs, Supreme Court decisions thwarting the characteristic zeal and dogmas of the majority are not suspicious. They reflect the separation of powers at work. As observed in Federalist 55:
“In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason. Had every Athenian been a Socrates; every Athenian assembly would still have been a mob.”
The Constitution’s prohibition on bills of attainder, which would allow Congress to levy punishments upon individuals without a trial in the justice system, is further evidence of a refusal by its architects to entrust stewardship of our liberties to legislative bodies.
The Dobbsargument that historical legislative protection of a claimed liberty is the alpha and omega of its constitutional status turns the whole idea of the Constitution on its head — to check rather than to bow to the hormonal-fueled masses. The court also embraced Dobbs’ constitutional nonsense in Egbert v. Boule. The case held that Customs and Border Patrol agents cannot be sued for damages for violations of clear and undisputed First Amendment rights unless Congress authorizes that remedy be statute. But the Egbert principle of immunizing federal officers from damage suits for even the most flagrant and egregious violations of the Constitution absent congressional consent applies more broadly to every constitutional violation. What sense does it make to leave it to Congress to devise remedies for violating constitutional rights which were enshrined because Congress could not be trusted with adequately protecting them? Doesn’t that smack of letting the fox guard the hen house?
The Declaration of Independence is the Constitution’s preface. It postulates that natural rights cognizable in courts of law are beyond the reach of political majorities.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness — that to secure these rights, governments are instituted among men.”
In other words, natural rights trump whatever liberties popular majorities historically have deemed worthy of protection.
Like all enumerated or unenumerated rights, natural rights defy mathematical precision. Their essence is the right to march to your own drummer, to develop your faculties and pursue your dreams free from domestic predation or foreign aggression, and to self-preservation. But after Dobbs, ideas of natural rights that were so prominent in the assumptions of the nation’s founders have been expelled from constitutional law.
As Justice Clarence Thomas’ concurring opinion advertised, the next precedents on the Supreme Court’s chopping block include the right to contraceptives, (Griswold v. Connecticut) the right to same-sex marriage (Obergefell v. Hodges) and the right to consensual sexual relations (Lawrence v. Texas). Indeed, no precedent is safe from overruling.
Writing for the Dobbsmajority, Justice Samuel Alito amplified that stare decisis withholds protection of major judicial blunders as opposed to simple ones. How to discern the line between the two? Dobbsoverruled precedents that had commanded seven and six-member majorities, respectively whereas Dobbsitself commanded five votes plus a concurrence from Chief Justice Roberts.
The overruled cases continued to enjoy support from three of Alito’s colleagues. At what point in the overruled decisions did Alito decide to lower those cases’ grades from pass to fail? Is such a standard for overruling precedents distinguishable from Justice Potter Stewart’s definition of obscenity in Jacobellis v. Ohio: “I know it when I see it?” Is that the rule of law or the rule of men?
Expect Supreme Court precedents protecting liberty to fall like pins for the indefinite future with sui generis exceptions for guns and prayer.
Bruce Fein was associate deputy attorney general under President Reagan and is the author of, “Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.” @brucefeinesq.