by Ramesh Ponnuru
Millions of Americans are unhappy, even furious, at the U.S. Supreme Court for reversing its 1973 abortion-rights precedent Roe v. Wade last month. There is more talk of a political backlash against the high court than at any time since the era of massive resistance to its school desegregation rulings in the 1950s.
Rep. Alexandria Ocasio-Cortez, the Bronx Democrat, suggests that the justices need more checks and balances. Sen. Ed Markey, the Massachusetts Democrat, says the latest abortion decision, Dobbs v. Jackson Women’s Health Organization, justifies expanding the court to let President Joe Biden pack it. Other critics of the justices are calling for term limits on them. Still others are issuing sorrowful warnings that the court is losing its “legitimacy.”
But the conservative justices don’t need to worry that their decision in Dobbs will prove self-defeating. It’s the progressive reaction to the court that has a greater chance of backfiring. That reaction fails to take seriously a key structural feature of Dobbs, which is that the court has relinquished authority over abortion policy rather than claimed it. There is not much that other political actors can do to make the courts exercise a power they do not want.
The Supreme Court’s history suggests that it moves itself into the line of fire when it makes itself an obstacle to policies that a politically powerful group favors. When it tried to block the removal of Native Americans from the eastern states in the 19th century, President Andrew Jackson established that the rest of the government could ignore it. In the first third of the 20th century, the court struck down progressive economic legislation. After coming under intensifying criticism for it during the New Deal, it felt it necessary to reverse itself and let such legislation stand.
What, by contrast, would it mean to disobey the Supreme Court’s ruling in Dobbs? The decision seems aggressive to its opponents because it overturned a longstanding precedent. But Dobbs didn’t tell policy makers to do anything in particular about abortion. For them to leave it legal would comply with the decision just as much as banning it would. When there’s no command, there’s nothing to disobey.
There are steps that Congress and the president could take against the court. But they either would not accomplish the goal of restoring liberal abortion policies or would not be necessary for accomplishing it.
It is arguably within the constitutional power of the other branches to strip the federal courts of jurisdiction to hear cases about abortion. But that wouldn’t restore Roe’s judicial veto over state abortion policies. It would put that veto further out of reach. Expanding the court and packing it with new liberal justices, on the other hand, could reinstate Roe. Impeaching and removing conservative justices could do it, too. But if progressives had the political strength to execute either plan, they would have more than enough to enact a national law protecting abortion.
Moreover, the predictable long-run effect of court-packing is to weaken the judiciary, as justices learn that their decisions will last only until an election delivers control of the elected branches to its opponents. This diminishment would make the courts less likely to overrule legislatures and less likely to prevail if they did. Yet this is exactly what progressives valued about Roe’s effect on abortion policy.
It may be, then, that the real danger to the conservative majority on the Supreme Court is not that it will provoke a backlash on abortion — or, for that matter, social issues such as contraception and same-sex marriage. On those issues, too, progressives are more eager to see federal courts exercise power than conservatives are. The conservative justices could generate a more potent backlash by striking down laws and policies.
So far, the court’s rulings on campaign finance and guns have not polarized the public the way Dobbs has. A determined Democratic party with control of the White House and Congress could easily get around many of its controversial decisions on economic issues. The court has not denied Congress the authority to fight climate change, for example, but rather said it has to do it explicitly.
But the court could become more aggressive. Imagine that the justices set such strict limits on congressional delegation of rulemaking authority to the bureaucracy that modern government could no longer be practically sustained. Some conservatives and libertarians would be elated. The court would also, however, have made itself the issue in a way Dobbs hasn’t. Everyone who wants a large, active federal government would have to defeat the court to attain their policy objective.
Even the court’s rulings on guns, controversial as they have been, have had limited practical effects. Its 2008 and 2010 decisions struck down unusually strict municipal ordinances. Its recent ruling against New York’s restrictions on carrying guns in public is consistent with the policies of at least 37 states. Advocates of more stringent regulation have generally been stymied by the political process, not the courts. But that, too, could change: Say the court struck down background checks as an intolerable infringement of the right to bear arms.
All of these issues could, of course, get jumbled together in the din of politics. Perhaps the justices, seeing the backlash to Dobbs fizzle, will grow overconfident on economic questions. Or maybe outrage at Dobbs will make progressives more liable to strike against the court when it makes a ruling that has nothing to do with abortion.
What has progressives angriest about the court at the moment, though, is not that it is blocking democratically enacted policies but that, on abortion, it is refusing to do that. Their objection is not to overreaching but to underreaching. Even if they were right, there’s little they can do about it.
