The Left Has No Judicial Philosophy

By Charles C. W. Cooke

Thursday, May 11, 2023

 

They say that in politics, as in war, it is impossible to fight something with nothing. And, in the realm of constitutional jurisprudence, America’s progressives are at long last discovering just how true that maxim can be. Once upon a time, the American Left adored the Supreme Court because, once upon a time, the Supreme Court was willing to do whatever the American Left demanded of it. “For half a century,” Mark Pulliam wrote recently in Law and Liberty, progressives “applauded activist decisions, proposed new theories of ‘noninterpretive’ jurisprudence, and blew kisses to the Justices most responsible for steering the Court to the left.” Now, progressives have soured on it to such a degree that they have started “questioning the legitimacy of the Court and proposing court-packing schemes.” To seasoned observers — especially those who lived through the 1960s — this shift in attitudes must be profoundly discombobulating.

 

The most obvious cause of this change was that, between 2017 and 2021, the makeup of the Court changed dramatically. In 2016, the Court was balanced 4–4–1, with Anthony Kennedy providing the “swing” vote. By 2021, for the first time in a century, the Court was 6–3 against the progressives, and the perennial swing-vote role — now being played occasionally by John Roberts — had been cut out of the process completely. For a progressive movement that had grown accustomed to achieving its key political aims via judicial fiat, this sudden alteration was nothing short of devastating. But, in my estimation, there is more going on than that. What really stings about this particular loss is that, deep down, American progressives sense that they have no obvious means by which to counter the legal changes they abhor. They’re impotent here as elsewhere they are not, they know it, and that knowledge is driving them to despair.

 

In electoral politics, the pendulum does a great deal of the work. Events come and go, majorities ebb and flow, coalitions congeal and fall apart. But constitutional law is different. In constitutional law, ideas and arguments truly matter. In constitutional law, truth counts for a great deal. In constitutional law, strong intellectual foundations will eventually win the day. And, in the year 2023, the progressive legal project is an entirely hollow affair.

 

Properly understood, there is no such thing as a “progressive legal project.” There are progressives, there is raw power, and there is nothing of substance outside of them. Read through the most popular critiques of the new Supreme Court majority and you will discover little that can be reasonably identified as a philosophy, an approach, a framework, or a theory. Having been out-thought, out-researched, and out-argued for the better part of half a century, America’s progressive lawyers now exhibit their own version of what Lionel Trilling famously described as “irritable mental gestures.” They see, they emote, they respond. Rarely in the field of American law has a political movement been as routinely incoherent.

 

The differences between the two sides are profound. In their corner, conservatives have originalism — a coherent, defensible, and comprehensive approach to the law that has taken America by storm over the last half century through the sheer force of its intellectual appeal. In their corner, progressives have . . . well, what do they have? That’s a serious question. Conservatives have originalism; progressives have what? Writing in the Wall Street Journal last year, the democratic-socialist historian David J. Garrow noted that “you don’t have to be a Federalist Society member to see that the analytical prowess today’s justices demonstrate in opinion after opinion far eclipses the quality of the Warren and Burger Courts’ work product.” Why? Because, unlike the Warren and Burger Courts, this Court has a majority that is actually engaged in analysis. The progressives? Not so much.

 

There are, of course, some limitations to the originalist approach. Sometimes, an originalist reading of the Constitution will fail to provide a clear answer. Sometimes, the same approach taken by different judges will yield conflicting results. Sometimes, it is tough to analogize between the problems of one era and the problems of another. But, like the scientific method, which suffers from the same drawbacks, even an imperfect originalism is preferable to the alternative of simply making it all up as you go along. If pushed, originalists can tell you exactly why one case requires deference to the people while another requires judicial intervention, or why one precedent should be upheld while another is overturned, or why one matter must be decided at the federal level while another is reserved to the states, and they can do this because their determinations are rooted in the Constitution as it actually exists. Certainly, there is room for disagreement about the details. But that disagreement is rooted in a set of intelligible rules that can be explained and advanced without the need to twist the English language to its breaking point, to lie about clearly recorded history, or to descend into postmodern rejections of the idea of truth itself.

 

The same is simply not true of progressive jurisprudence, which, in pretty much every respect imaginable, represents nothing more honorable than the advancement of quotidian political power. Why, some people have wondered, did Justice Ketanji Brown Jackson pretend to be an originalist in her confirmation hearing last year when it is unlikely that she is any such thing? Why, during her own hearing, did Elena Kagan, the first Supreme Court justice nominated by Barack Obama, say “We’re all originalists now” when, in fact, she is not an originalist of any stripe? I’ll tell you: Because the alternative declaration — “I will use my authority to advance the policies I like” — is politically unpalatable to all but the most committed partisans, and because both Kagan and Brown Jackson know it. How humiliating it must be to be so weak as to feel obliged to dress up as one’s enemies.

 

How can progressives escape this vicious cycle? Absent abolishing or neutering the Supreme Court, I doubt that they can. They are stuck inside a tangled web of their own making, and, for now at least, they are duty-bound to keep spinning.

 

For a good example of this, consider last year’s Dobbs case. In 2022, the Court’s new majority finally struck down the disgrace that was Roe v. Wade. And, in response, progressives were forced to advance a series of jurisprudential arguments that were somehow even worse than the ones that their predecessors had made in the first instance. In a thorough and devastating opinion penned by Samuel Alito, the five originalists on the Court explained that the problem with Roe was that it was entirely unwarranted by the Constitution on the day that it was decided and that, because the Constitution has not changed in any relevant way since that day, the ruling remained entirely unwarranted. In response, progressives shouted and waved their hands and insisted that the Court was now “illegitimate.”

 

And what else could they do? Back in 1973, when Roe was issued, the pro-choice legal analyst John Hart Ely observed that the Court had seen fit to create a “super-protected right” that was “not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure,” and they had thus elected to answer “a question the Constitution has not made the Court’s business” in the first instance. Roe “is bad,” Ely proposed, “because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” This was demonstrably true, and its being true left the supporters of abortion with just two realistic options: They could either admit that Roe had been a mistake, or they could advance a new set of arguments that, like those that came before, had absolutely nothing to do with the Constitution’s language, precepts, intentions, or structure and that were guaranteed to do nothing useful in the courts.

 

Predictably, they chose the latter option. Ignoring the merits completely, they insisted, inter alia, that the overturning of Roe was “undemocratic,” that Roe had been precedent and should therefore have been protected, that the decision was a problem because it would lead to bad things, and in some quarters that the Supreme Court had rendered itself “invalid” and should be abolished or stripped of its power. None of these offerings was impressive. And, more important perhaps, none of them helped progressives to articulate a coherent theory of interpretation.

 

Complaining about Dobbs in the Atlantic recently, Kimberly Wehle submitted that, “by its own maneuvering, the modern Supreme Court has made itself the most powerful branch of government.” She then pointed as an example of this to “the Court’s ending of long-established reproductive rights in Dobbs v. Jackson Women’s Health Organization,” a decision that, per Wehle, had granted “extreme power” to the Court and made it “superior to Congress,” “superior to the states,” and “superior to the people.” This line was a popular one on the left. Commenting on the ruling after it was officially announced, President Biden called it “an exercise in raw political power,” Vice President Kamala Harris argued that it had served to “undermine our democracy,” and Senator Elizabeth Warren insisted that the justices in the majority had “forced their unpopular agenda on the rest of America.”

 

Which, of course, is completely ridiculous. Never mind that, as a purely jurisprudential matter, the question of “democracy” was irrelevant to the correct outcome in Dobbs. What mattered in that case, as in others, was not whether the public liked or disliked abortion, but whether the Constitution does, indeed, take the question out of the voters’ hands. It remains an undeniable fact that the decision has yielded a marked increase in American democracy. Before Dobbs, American abortion policy was decided by the courts, which, for nearly half a century, had routinely struck down the will of the majority in the name of individual rights; after Dobbs, the states were free to regulate the practice as they saw fit. By stupidly insisting that the Supreme Court had acted “undemocratically” by returning a contested issue to the states, progressives not only got the facts completely and obviously backwards, they made it harder for their allies to defend the many, many judicial interventions that they continue to support. Obergefell, you might have noticed, was not exactly Tocquevillian in nature.

 

Another argument that progressives have made against Dobbs is that Roe v. Wade was legitimate purely because it had survived for a long time. In and of itself, this argument is circular: Roe was correct, runs the case, because Roe had existed for a while. But it’s also disastrous to the progressive cause. Ask an originalist what separates Roe from Heller and he’ll tell you that the difference is that Heller was correct and Roe was not. Why? Because the right to keep and bear arms is explicitly enumerated within the Bill of Rights while the right to an abortion is not. Ask a progressive the same question and he’ll shift uncomfortably in his seat. After 50 years of incoherence, progressives are completely at sea on this question. They’re not in favor of precedents per se — to understand this, ask a progressive lawyer what he thinks of Citizens United or Shelby County or Bruen — and yet, when they like the results of a given case, maintaining the precedent that protects it not only becomes imperative, it becomes imperative because it’s a precedent. Why? Because there’s nothing involved but self-interest and political ideology.

 

The last argument made against Dobbs is that it will lead to bad outcomes and that the Court ought to avoid making rulings that lead to bad outcomes. In and of itself, this idea is offensive to originalists, who see no point in having a written constitution if its terms are to be constantly “updated” and kept in line with transient public opinion. But it’s also inconsistent with how progressives see the law in many other contexts. A Supreme Court that simply followed public opinion would be a Court that struck down affirmative action, limited the constitutional rights of defendants, permitted prayer in schools, and allowed the prohibition of flag-burning. In the moment, it may have helped progressives to argue that a majority of Americans favored keeping Roe v. Wade in place; in the long run, it merely made them sound schizophrenic.

 

A year has now passed since the Dobbs decision was leaked, and, despite having had more than enough time to contrive a coherent and persuasive argument against its holding, progressives have managed to come up with nothing more noble in the intervening time than to insist that the Court ought to be destroyed or stripped of its authority or packed with sympathetic judges (all of which, in practice, amount to precisely the same thing). Exactly how this is achieved does not seem to matter; the approach has been to throw everything possible at the wall and to find out later what sticks. Whether this will work remains to be seen, but one thing is abundantly obvious even now: Philosophically, progressive legal activists have got nothing whatsoever to offer, and they know it.