By Charles C. W. Cooke
Monday, June 20, 2022
It gets tiring having to point this out,
but here goes nothing.
At CNN today, Stephen Collinson writes:
A tense
national mood is likely to be exacerbated if, in what would be twin triumphs
for conservatives, the Supreme Court rules against majority public opinion and
loosens gun restrictions and overturns a woman’s right to an abortion in the
coming days. Already, a man has been charged with trying to kill conservative
Justice Brett Kavanaugh, reflecting the charged atmosphere surrounding the
court and the politicized issues it’s set to rule on.
This is a disgraceful choice of framing
that — whether intentionally or not — serves as a partial justification of the
very “charged atmosphere” and assassination attempt that Collinson is
ostensibly attempting to lament. The Supreme Court is a court, and its job is
to uphold the law — whether statutory or constitutional — as it
actually exists. The wishes of “majority public opinion” — or of would-be
political assassins — are irrelevant to this endeavor. If a sufficient majority
of Americans no longer like the law, they can use their democratic power to
change its text. But, until they do so, that text will remain what it is, and
the Court will be obliged to interpret it without fear, favor, contrivance, or
reference to anything beyond its written terms.
Collinson points in particular to two
questions that are currently before the Court: abortion and guns. If one were
to take his insinuation at face value, one could be forgiven for believing that
the plaintiffs had asked the Court, “Hey, so abortion and guns — good or bad?”
But, of course, they have done no such thing. Rather, they have asked the Court
to decide whether the text of the Constitution precludes or limits certain
democratic choices related to the regulation of abortion and guns. The
originalist argument on abortion — the argument that Collinson clearly suspects
will prevail — is that the Constitution does not mention (or imply) anything
about abortion, which means that that question must be left entirely to the
people. The originalist argument on guns — the argument that Collinson clearly
suspects will prevail — is that the Constitution explicitly protects “the right
of the people to keep and bear arms,” which means that, absent a subsequent
amendment, there exist certain limitations on what the people may do to
regulate it. At no point in examining either question would it be appropriate
for the Court to ask what the public would prefer if given a vote.
Why not? Because — once again, for those
in the back — the Supreme Court is a court, not a legislature, and
because its job is not to decide what the law should be, but what it is.
That the Court sometimes deals with “politicized issues” does not alter this.
Indeed, there would be no point in our having a written constitution if its
terms could be overridden by transient public opinion every time the issue at
hand was deemed controversial. If all it took for a given political action to
be considered legitimate were a careful reading of opinion polls, then there
would be no point in our having legislatures or executives. Congress could go;
the president could go; the courts could go; written law could go; the
separation of powers could go; the Bill of Rights could go; and in their place,
we could put Frank Luntz.
That may sound like a joke, but it is no
such thing. If, as Collinson implies, the Court should consider public opinion
when it makes its decisions, then it should do so in all cases. Sure, the
Constitution doesn’t allow the president to raise taxes on his own. But what if
raising taxes is popular, and if preventing him from doing so would create a
“charged atmosphere”? Sure, the Constitution doesn’t allow even the most
popular of presidents to run for a third term. But what if Gallup says he’d win
the next election in a walk, and to uphold the 22nd Amendment would annoy
voters? Sure, the Constitution doesn’t allow the prosecution of people for acts
that were not criminal at the time they were committed. But what if declining
to allow such charges leads to death threats against judges?
As Antonin Scalia pointed out in A
Matter of Interpretation, the existence of formal institutions requires
the use of formal institutions — yes, even in such cases as
their application frustrates the majority, pushes the question to a different
branch, or delays what observers may believe to be a foregone conclusion:
Of all the
criticisms leveled against textualism, the most mindless is that it is
“formalistic.” The answer to that is, of course it’s formalistic! The rule of
law is about form. A murderer has been caught with blood on his hands, bending
over the body of his victim; a neighbor with a video camera has filmed the
crime; and the murderer has confessed in writing and on videotape. We
nonetheless insist that before the state can punish this miscreant, it must
conduct a full-dress criminal trial that results in a verdict of guilty. Is
that not formalism? Long live formalism. It is what makes a government a
government of laws and not of men.
The law is the law. And, until it is
changed, it remains the law, irrespective of what the majority might want, how
“charged” the atmosphere might become, and how many people try to murder or
intimidate those whose job it is to uphold it. That’s not a problem to be fixed
or bemoaned; it’s the basis of all civilization.
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