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.

Reader Discussion

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on November 18, 2016 at 09:45:42 am

Of course, it should be noted, that the form of Ms. Stahl's questions are very different. The first addresses "what if?", the second, "do you support?" - the distinction premising Mr. Trumps separate responses bears greatly on the validity of the inference and insinuation asserted.

But, to be fair, and in turn, I may be equally missing the distinctions bearing on the validity of what my reading of this essay causes me to infer and to insinuate.

I will only offer an additional comment, I doubt the founders were ever so naïve or wrong-headed as to envision any possible constitutional issue that did not contain, however insignificant, a political outcome.

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Paul Binotto
on November 18, 2016 at 10:41:54 am

Mr. Ealy has framed the discussion rather nicely, I would say, with the emphasis on "political questions"

It is something which we may often overlook, especially with SCOTUS tortured conception / creation of it's own unique "political questions" doctrine.

I think also that Paul (above) is quite right that the Framers, being reasonable and diligent *observers* of politics recognized that ultimately all cases and controversies (as it were) pose political questions and so structured this particular form of republican government so as to a) minimize the number of "political" questions to be properly addressed by the legislature and b) to allow for a "meta" framework for resolving those political questions and c) delegate the proper authorities to the *proper* branch of government for the resolution of those questions.

Recall also that for the Framers, the Legislative was to be a) Supreme and b) considered the most dangerous of the Branches. (BTW: Not without good cause did they make such a determination re: Legislative Branch).
Their trepidation notwithstanding, the Framers nevertheless crafted a governing structure that would have the Legislative as the principal component of / for governance while allowing for the possibility of a *check* on Legislative excess.

It is in this area of excess that much of the debate is centered.

Mr. Ealy, and others, are, of course correct to remind us of the "political questions" component of judicial decision making (although currently noteworthy more for its absence than its vigorous presence). Yet, I fear that like others, he may be advocating a more "deferential" judiciary than even the founders would have expected / tolerated. And here is where we must find the proper balance between a proper respect for the *delegated* powers of the Legislative in those areas (political questions) that are by nature and constituent law within the sphere of the Legislative AND those areas where the resolution of political questions by the Legislative (please include the Executive, as well) Branch is clearly an unwarranted, improper and constitutionally impermissible extension of the Legislative grant of authority. Clearly, there was (and currently is) a need for a judicial check on *excessive* and exuberant Legislative activities. One need only look at the rather frightful treatment of State citizens (and those of neighboring States) by State Legislatures under the Articles of Confederation to know that the Framers sought to provide a mechanism to counter possible legislative overreach.

Thus, a Supreme Court with a power to review and "check" excess in the legislative. Consider how many clauses in the Constitution are a direct response to abuses by various State Legislatures prior to Ratification.

Again, the issue here is the ability to properly frame "political questions" and to determine when and if, though it be a political question as almost all are, the Legislative has simply "stepped in it" and the lingering odor of its overstepping must be ameliorated.

Balance, boyos, Balance.
Some call it engagement - whatever one wishes to call it, IT is and requires Balance and a respect for one's constitutional DUTY.

Now off for some golf!!!

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on November 18, 2016 at 12:03:30 pm

Ahhhh, Mr. Gabe,

You can always be counted on to be a voice of reason calling out from the fairway. The persistent rumble in the concrete jungle has me on heightened alert for every potential sand-trap and seeing double-bogeys between every line, like some silly puts...

Do you recall the time when great things could be accomplished among people of good will on the golf course? Now coming together is like running an obstacle course just to reach the starting line.

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Paul Binotto

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