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Uniting the Court’s Adherents of the Rule of Law

The story of this term has been a united block of the left on the Court, where Justices on the right were fractured. I have suggested that one important reason is that justices on the right take jurisprudence seriously, whereas the left are ideologically motivated. More evidence for this proposition comes from the observation that even when the right won, their justices often wrote separately. It is reason not result that counts for them. And this is as it should be: insistence on right reason affirms the rule of law. A focus on results is just about political power.

In contrast, when the left was in the majority, they tended to join opinions as one, even when they were as doctrinally unpersuasive as Justice Anthony Kennedy’s in the same-sex marriage case. The senior justice on the left boasted she kept her voters in line. Indeed the real division on the Court is between legalists of various kinds and ideologues of one kind.

What is to be done? Above, all win a Presidential election. Ultimately if we are to preserve the Constitution as a rule of law, we must elect someone committed to justices who will interpret it as other law, not a vessel for advancing the left’s ideology. Yet the leading candidate of one of our parties has already said that what matters to her is not jurisprudence but a result—the overruling of Citizens United, a case that perhaps not coincidentally permitted citizens to use a corporate form to distribute a film that criticized this candidate herself.

But what can be done in the interim by the justices themselves? There is some indication that at least one justice may be rethinking his past approach. Justice Samuel Alito’s dissent in Obergefell states baldly: “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.” Substantive due process—that famous constitutional oxymoron and font of undisciplined judicial discretion—has not been tamed.

Perhaps it cannot be, because it contains precious few resources of constraint within its text. The Glucksburg test sounded good mainly in prudence and was itself the product of a past court decision rather than any clear inference from a constitutional command. .

One possible and very tentative suggestion of a new approach would be to revive the Privileges or Immunities Clause, wrongly obliterated in the Slaughterhouse Case. The Privileges or Immunities Clause has an historic meaning that would offer some greater discipline for the content of fundamental rights. And as added bonus, it recognizes that the Constitution offers some protections to historic economic liberties, like the right to choose a profession, rather than untested social ones.

To the objection that reviving Privileges and Immunities would mean overruling a venerable precedent, legalists should be more willing to overrule precedents. As Mike Rappaport and I argue in  Originalism and the Good Constitution, while the Constitution contemplates precedent, the precedent rules of most justices of the current Court protect too much bad law and insufficiently acknowledge the virtues of originalism. And in a world where the left appoints ideological justices, excessive respect for precedents is a one-way street to permanently substituting the left’s ideology for the Constitution.

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