Principle or Policy Preferences?

What to make of Donald Trump’s interview with CBS’s Lesley Stahl last week?

The 60 Minutes host asked the President-elect about the justices he would nominate to sit on the Supreme Court. He said they would be pro-life. About the future of the 1973 Roe v. Wade ruling, Trump said: “But having to do with abortion, if [the ruling] ever were overturned, it would go back to the states.” Stahl asked if this meant some women would not legally be able to get an abortion. He replied that “perhaps” they will “have to go to another state.”

Later, the question of the Supreme Court arose with regard to gay rights. When Stahl asked Trump if he supported “marriage equality” the response was: “it’s irrelevant because it was already settled. It’s law.” And, he added, “I’m fine with that.”

These exchanges raise a number of questions.

First, does President-elect Trump distinguish between abortion rights and marriage rights on the basis of some principle or simply on the basis of his personal policy preferences—he’s opposed to abortion so we can overturn the Court’s decision but since he favors gay marriage we can’t overturn the Court’s decision?

Second, isn’t a Court that is reshaped in a way that allows a majority to overturn Roe v. Wade likely—or more likely—to be open to the possibility of also overturning Obergefell v. Hodges (2015) than the current Court? If the doctrine of stare decisis does not protect Roe why should it protect Obergefell?

Commentators are currently debating the likelihood of the Court’s abandoning Obergefell, and a key argument for those who don’t think it possible is that no one has standing to bring a case, because no one can prove they have been injured by someone else’s right to marry. As the late Justice Scalia suggested in his dissent in United States v. Windsor (2013), a Court determined to have its say won’t be stopped by the fine points of legal tradition. Would a newly configured “conservative” Court show more self-restraint than have “liberal” Courts?

Finally, what is the U.S. Constitution—a governing document or a policy document? Since the Constitution is institutional and procedural in focus, I believe it is a governing document that can accommodate both “conservative” and “liberal” legislation, just as it can accommodate wise and foolish legislation. Partisans Left and Right today, however, seem intent on turning the Constitution into a policy document in an effort to delegitimize their opponents.

Rule of law, wrote F. A. Hayek, “is not a rule of the law but a rule about the law, a meta-legal doctrine, or a political ideal. It will be effective only in so far as the legislator feels himself bound to abide by it.”[1] And, we might add, when we are talking about the Constitution, it will be effective only insofar as justices also feel bound to abide by it.

To the extent the Constitution is a governing and not a policy document, it cannot resolve the most vexing policy questions that face us. These must be settled in the halls of Congress and the White House, not in the Supreme Court chamber. Perhaps the nation would be better served if President Trump sought justices who understand the doctrine of “political questions,” which allows the Court to withhold judgment in cases which involve political outcomes rather than constitutional issues—and whose judicial modesty[2] allows for a robust role for legislative policymaking, rather than pursuing narrow policy goals through the nomination process.

[1] “The Political Ideal of the Rule of Law,” in The Collected Works of F. A. Hayek, Volume 15: The Market and Other Orders, edited by Bruce Caldwell (University of Chicago Press, 2014), p. 163.

[2] Publius argues, “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution . . . It may truly be said to have neither Force nor Will but merely judgment . . .” Alexander Hamilton, John Jay, and James Madison, The Federalist, No. 78 (Liberty Fund, 2001), p. 402.