The uncomfortable truth for liberals is that America could have five pro-abortion, pro-same-sex marriage justices on the Supreme Court and Roe v. Wade and Obergefell v. Hodges could still be overturned. Yes, you read that right. If you’ve been watching the news lately, you may find that statement counterintuitive or flat-out ridiculous at first, so let me explain: Originalist justices would overturn two of the most celebrated progressive court cases of the last 40 years, regardless of their personal political philosophy.
This is because being faithful to the rule of law and simply applying the Constitution without considering your own personal policy preferences is what being a United States Supreme Court Justice and any level of federal judge is all about.
President Trump has indicated he will announce his pick in early July to fill the seat of Justice Anthony Kennedy who will retire from the bench effective July 31, and the president also said he will choose a nominee from his previously published list. This is an opportunity for the Trump Administration to create a new constitutionally faithful majority on the Court, and the sheer panic from the left over “losing rights” provides an excellent point in America’s modern history to discuss the purpose of the Supreme Court. How does one judge retiring mean that people are going to “lose rights?”
It should be obvious to anyone who actually reads the Constitution’s text, rights do not come from the Constitution. But neither Roe nor Planned Parenthood v. Casey found a “right to abortion” in the Constitution anyway. These abortion cases didn’t even suggest this, but rather the Court found that the “right to privacy” covers some abortions in some circumstances. Since these decisions, the Court has sought to “balance” this right to privacy versus the state’s compelling interest in protecting human life. This was established as the “undue burden” test in Casey.
This was judicial “finessing” to cover up the inherent incongruency of these opinions with the Constitution — Casey and Roe (and later, Obergefell) were about finding things that aren’t in the Constitution to advance a specific policy agenda rather than faithfully applying the law. These cases are about imposing the opinion and preferences of a majority of activist judges over the rule of law.
In addressing the merit of legitimate governmental interest in protecting life or even protecting people from harm in any other context, the right to privacy does not serve as a valid defense. For example, a person could not claim a right to privacy against government prosecution for child abuse simply because the abuse happened in the context of one’s private home.
However, the Court need not even reach the balancing test to overturn Roe and Casey or Obergefell. A judge who is faithful to the original text and intent of the Constitution would simply find that these so-called “rights” are not present in the Constitution and that the Supreme Court has no authority to impose its policy preferences on these issues. In other words, overturning Roe and Obergefell would not take away “rights” because no such rights ever existed and — importantly — a judge’s personal policy preferences wouldn’t matter.
But will the new Supreme Court actually overturn Roe or Obergefell?
Many on all sides view the new Court’s composition (presuming the new nominee will be an originalist) with Chief Justice Roberts as the swing vote, but there is much evidence to be hopeful that Roberts will follow the Constitution, particularly considering his strong dissent in Obergefell when he said, “[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what the law should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”
Roberts was very clearly arguing for a faithful application of the rule of law over any policy arguments, even compelling ones, and that the legal arguments should not be confused with policy arguments in the context of a judicial opinion. His entire dissent reads as a textbook analysis on the distinction between what government (particularly the federal government) can do under the vested powers in the Constitution versus how it may decide policy within the margins of its constitutional authority.
Moreover, the Court’s conservative majority signaled just this term in Murphy v. NCAA that it’s trending toward a genuine federalist model and said in Janus v. AFSCME (mere hours before Kennedy’s retirement was announced) that bad precedent must be reversed when the logic of prior decisions fails to faithfully apply the Constitution. All of this suggests that that perhaps Justice Kennedy himself is reconsidering Obergefell and the emotional overtures he made in writing for the majority in that case.
We should be happy to have five faithful originalists — nine would be even better — regardless of their personal policy views because the only function of the judicial branch is to check and reign in the legislative and executive branches from stepping outside their limited constitutional authority.
Having policy arguments over the next Supreme Court nominee shows how far off-track our judiciary has strayed from their duty to faithfully apply the Constitution. Liberals’ angst over losing “their” majority shows how the Court has become more a super-legislature than a court of law. Just look at the recent federal judge senate confirmation hearings. It’s all about the nominee’s political policy preferences and personal beliefs rather than whether that person understands how to simply apply the law.
Fixing this is not a partisan political agenda. It’s what the Constitution requires, and the Constitution that should win every time.
Jenna Ellis (@jennaellisJDFI) is director of public policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution.