The Incredible Shrinking Constitution
The Long Game of Constitutional Politics
The big summer holiday in the USA has finally arrived. I am writing this in our Cape Cod home that is brimming with twenty-and-thirty-somethings and a four-month-old puppy. Which is another way of saying, I’ll keep it short.
I’m still absorbing the news about all the bombshell decisions the Supreme Court has volleyed over the last two weeks, and have abandoned any thought of trying to read them all before the 4th. The abortion decision alone, when combined with the two concurrences and lengthy dissent, totals 213 pages. All told, when the decisions in Dobbs are combined with the decisions addressing guns, religion, tribal rights, and the environment, we’re talking about hundreds of pages of dense, technical reading. I have made it through some of the Dobbs decisions and am half-way through the Breyer-Kagan-Sotomayor joint dissent, but that’s as far as I’ve gotten. Still, between the podcasts I’ve been listening to and the news reports I’ve read, I’ve got a general sense of the big picture.
One thing that has become clear is that there are two lenses through which people view the decisions - the layperson/pundit lens and the lawyer/scholar lens. The two lenses are very different but equally important.
The layperson/pundit lens goes something like this. The conservative majority loves guns, religion, and energy companies, and doesn’t care much at all about women, minorities, or the environment. Each of these important decisions are perceived, understandably, by their results, and not by the reasoning that produced them. Americans who disagree with them take them personally as the natural outgrowth of an extreme right-wing agenda empowered by conservative Republican leadership’s (read, McConnell’s) disingenuous manipulation of the Court appointment process.
The lawyer/scholar lens, on the other hand, views the decisions in their theoretical and historical contexts. They are the product, in part, of a decades-long conservative effort at constitutional reductionism that honors only enumerated constitutional rights (the right to bear arms, for example, but not a right to privacy). This “originalist” understanding interprets the Constitution not as a living document that adapts to new circumstances unforeseen by its framers, but as a static parchment that changes only by a cumbersome and, in modern times, next-to-impossible process of amendment. Foundational “liberal” Court decisions of the 1960s and 1970s and, until recently, a balanced Court with a majority of Justices who have recognized the importance of respecting precedent (by now the phrase “stare decisis” should be familiar to most of us) have prevented a sharp swing to the right, despite the conservative majority’s gradual erosion of a number of liberal policies.
Not all the issues the Court has addressed involve the divide over originalism as a method of constitutional interpretation. Some involve more seemingly mundane but similarly important doctrines of administrative law, including how much power administrative agencies possess to issue and enforce regulations, technically known as the debate over a longstanding doctrine known as “Chevron deference” and a competing but previously unrecognized school of thought known as the “major questions” doctrine. The recent religion case even pits one constitutional provision against another — the Free Exercise Clause versus the Establishment Clause (the two religion clauses of the First Amendment), one of which guarantees religious liberty while the other guarantees the separation of church and state. The new conservative supermajority reportedly tips that balance towards the former and away from the latter.
As I said at the outset, though, I am not prepared to discuss these decisions in any depth today, even assuming some readers would be interested. My real point is simply to explain that what we’re witnessing is not solely an outcomes-driven approach, but also entails the new Court’s rejection of decades-old principles in favor of a radical ideology that conservatives have been pushing for years and only now have the votes to impose.
The difference in approaches stems from conflicting visions of America and its constitutional framework, but they are nothing new. They almost gained ground in the late 1980s, when President Reagan nominated Judge Robert Bork to the Supreme Court. Bork was not confirmed, largely because his originalist views (the views, in other words, now held by a majority of the Court) were considered by most Senators to be too extreme. Justice Anthony Kennedy, a moderate Republican, was nominated and confirmed in his place, and served as the Court’s principal swing vote until his retirement under suspicious circumstances gave Trump and McConnell another vacancy with which to mold a conservative super-majority.
After Bork’s defeat, he published a book about his originalist views and his bitter confirmation process. One year later, Professor Laurence Tribe of Harvard Law School and now-Professor Michael Dorf of Cornell Law School, both constitutional scholars, wrote a book critical of those views and describing their more widely accepted approach to constitutional interpretation. In 1991, I published a book review in the Massachusetts Law Review contrasting the two books and their conflicting perspectives. I recently retrieved the article and now post it below as a reminder of the longstanding nature of the constitutional debate.
Although I did not intend for this Substack to become as focused as it recently has been on politics and law, there has been too much happening for me to ignore. For now, though, my family and I plan to celebrate our nation’s independence from the British throne and enjoy what’s left of the holiday weekend. My sincere best wishes to one and all.
By the way, for constitutional enthusiasts, Professor Dorf and his colleagues publish a terrific blog called “Dorf on Law.” You can find it here.
I, too, can’t believe Alito’s radical opinion that limited judicial power in favor of state legislatures accountable to voters. Radical indeed in a democratic republic, except to the Left, its 72 genders, and Lia Thomas.
Radical ideology or merely different from the Left? If SCOTUS is radical, easy solution is for Congress to legislate. Wonder why it hasn’t and won’t even with Obama super majority. Maybe not so radical after all……except, of course, to the Left.