Discover more from Reflections of a Boston Lawyer
I’m writing this from Logan International Airport, waiting for my son to arrive on a delayed flight from O’Hare. Driving into Boston today I was struck by the incredibly poor visibility that cloaked the usual downtown office towers like the ones in which I used to work. I’m guessing that’s why the flight is delayed.
What better way, then, to spend lost time than writing a post on my phone. Given the predictably chaotic release of Supreme Court decisions this week, I should have plenty to write about. In truth, I have only read the majority opinion and the two dissenting opinions in the affirmative action case so far, but I’ve been seeing and hearing a lot of reporting about some of the other cases.
The early impression I have formed, which is subject to change as I read more of the Justices’ opinions, is that the Court is behaving like a legislature. Beginning with the Dobbs decision last year and continuing with the university admissions cases now, it seems that the meaning of the Constitution is capable of opposite yet equally binding interpretations depending on which party controls the Court at the time the interpretation is rendered. If one party disagrees with a Court’s ruling, they need only wait until they own a majority of the Court and magically the Constitution takes on an entirely contrary meaning.
It’s certainly appropriate for a legislature to repeal a law in accordance with the will of the voters, but constitutional law should be more stable than that. And a Court whose job, in part, is to protect the rights of citizens who lack a majority in Congress should be reticent to take away rights those citizens have long enjoyed, especially rights like the right to be free from structural racism. At a minimum, the overturning of long-standing precedent in a manner that eliminates constitutional protections should be done only very rarely in the most egregious cases, if at all. And the Justices voting to do so should do so humbly and contritely, without even a whiff of arrogance or zeal discernible from their writings.
Federal courts also act like legislatures when they go out of their way to decide important issues without a true “Case or Controversy” before them. I have heard numerous pundits say that the plaintiffs in some of this week’s cases lacked standing because they had no live dispute at the time they filed suit. I’ll reserve judgment on that since I haven’t read those decisions yet, but if the pundits are correct, then again the Court’s decisions may represent an abandonment of the limits on the Court’s jurisdiction and the adoption of an abstract, policy-making approach more suitable to a legislature than to the third branch of government.
At its heart, the trouble with a court acting more like a legislature than a resolver of actual cases is that it does so at the expense of its public perception and its own legitimacy. It fans the flames of those cynics who criticize the court as a creature of politics rather than a fair arbiter of the rights and obligations of the parties appearing before it. It weakens its own authority and creates the conditions that could overwhelm our system of checks and balances. It diminishes an institution the public relies on to keep our democracy within constitutional guardrails. It erodes the stability on which a constitutional republic is built.
To be fair, some of the Court’s decisions this term, including some very important ones, were supported by both Republican and Democratic appointees to the Court. And most of the Justices seem, for now at least, committed to protecting democratic processes, as evidenced by the Court’s recent voting rights decisions, as well as its resounding rejection of the ridiculous “independent state legislature” theory which threatened to radically disrupt our firmly established method for electing Presidents.
So yes, the phrase “it could have been worse” surely applies to this term’s outcomes. But the majority’s apparent propensity to stretch the bounds of the Court’s powers and gleefully take long-protected rights away from vulnerable minorities bears close watching.