News and Notes: Supremely Awful Opinion

By George Francis Kane

On December 13, President Biden signed into law the Respect for Marriage Act, which requires states to recognize same-sex and interracial marriages performed in other states. Those marriages were already protected by the Supreme Court, which had overturned state laws denying recognition of interracial marriages (Loving v. Virginia, 1967) and same-sex marriages (Obergefell v. Hodges, 2015.) The new law was motivated by fear that the Dobbs decision overturning the right to abortion portends that the Supreme Court is on a project to overturn every civil right justified by a “right to privacy” because that is not mentioned in the Constitution.

The Women’s Health Protection Act of 2021, which would have restored a national right to abortion, did not have the same success. It passed in the House but failed on a 46 to 48 cloture vote to reach the Senate floor.

Throughout the second half of the 20th Century, the Supreme Court had been a stalwart guardian of civil rights and separation of church and state. Now that the Court has flipped on these issues, these battles will move into Congress. The decisions with which the Court has reversed precedents have been politically unpopular. A poll taken after the Dobbs decision showed that 61% disapproved, while a Gallup poll put the Court’s approval rating at an all-time low 40%. There is activity in Congress to replace these decisions with statutory national law, but that is difficult because of intense political division. Also, the national electorate loves divided government and regularly alternating the party of successive administrations. Significant legislative successes will be arduous and likely fleeting.

Most of the decisions at issue, by vacating precedent, increase the scope of state legislative authority. Dobbs permits states to outlaw abortion. In separation of state and church issues, however, Court decisions have imposed mandates on government to ignore the Establishment Clause and to assist churches, by reading sweeping privileges into the Free Exercise Clause. That is, that if government creates any program that provides any benefits, those benefits may not
be denied to any church because of its religious nature; and if those benefits are contingent on any requirements, the churches must be exempted from those requirements if they conflict with their religious beliefs. The Supreme Court is redefining the religion clauses of the First Amendment into an obligation for government to provide religion with financial support, and to exemptions to non-discrimination laws. Laws that defy these rulings will be challenged by conservatives and will be overturned by the court as currently constituted.

But the authority of the court to decide which laws violate the Constitution is not established in the Constitution itself. It provided that Justices be appointed for life to insulate them from political influence, but the current court has been constructed over decades to attain a reactionary majority. It should not have exclusive authority to interpret the Constitution. As Thomas Jefferson wrote, in an 1820 letter to William Jarvis:

You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. … Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Article III Section 2 gives the Supreme Court “Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Congress should assert this authority to undermine the unpopular, politically driven, counter-to-precedent decisions by, when necessary, instructing the Court how the Constitution must be interpreted.