Has the Supreme Court lost the American people?
We’re more than a month removed from the Supreme Court overturning Roe v. Wade, a massively consequential decision and arguably a watershed moment for the Court.
Whatever your politics, and whatever you think of abortion, this much is clear: The Court made a choice to unsettle established law and shake up the tectonic plates of American society.
Now that we’ve had some time to process not just this case but some of the other extreme opinions from the Court’s most recent term — on everything from gun rights to environmental regulation — I wanted to bring on an expert to help us think it all through.
So I invited Niko Bowie, a Harvard Law professor and a former clerk for Justice Sonia Sotomayor, to join me for an episode of cafemadrid Conversations. He writes about the issues at the core of this conversation, and last year he testified before President Biden’s Commission on the Supreme Court to discuss potential ways to reform the highest court in the land.
We discuss the history and role of the Court, whether these conservative justices sacrificed the Court’s legitimacy for the sake of political power, and if he sees any path to reform that might save the Court from itself.
Below is an excerpt, edited for length and clarity. As always, there’s much more in the full podcast, so listen and follow cafemadrid Conversations on Apple Podcasts, Google Podcasts, Spotify, Stitcher, or wherever you listen to podcasts.
It’s been a few weeks since Roe was overturned. We all knew this was coming, but what was your reaction when it actually happened?
My immediate reaction was sadness, sadness that rights that millions of people had taken for granted for the past 50 years have suddenly been taken away. And that people’s lives are about to be upended and it’s only gonna get worse. So as far as just the practical effects of the opinion, it just felt really sad.
Legally speaking, it was expected. The conservative members of the Supreme Court have been saying for almost the past 50 years that this was their objective. It’s why they were selected to join the Court in the first place, and so when they got the opportunity, I think it would’ve been a surprise had they not taken it.
I’d like to ask you to briefly steelman the conservative legal case. One of the things I have heard the most from defenders of this decision is that it simply returns power to the states and that’s it. What’s your response to that?
Well, abortion is one those issues like, “what should our democracy look like?” or “how are we gonna respond to climate change?” — a fundamental issue that all of us care about very deeply. And for these really fraught, fundamental issues that the entire country has an interest in, I think the basic question is: Which institutions or which forums will be responsible for resolving these questions?
In a democracy, you would expect that this would be resolved democratically. And there might be some reasons why the democracy would delegate certain questions to an un-democratic group. But in general, you would think that the most important questions facing the country would be resolved by the country in which every person is treated as a political equal.
So Congress has weighed in here. Congress drafted a 14th Amendment in which it guaranteed the equal protection of law and guaranteed the privileges and immunities of citizenship, and the due process rights of all people. The amendment the American people ratified in 1868 gave Congress power to enforce its terms. Congress passed a law, that’s currently known by 42 USC 1983, in which it tells federal courts to prohibit states from depriving these federally guaranteed rights.
And so to suggest that when a Court just returns an issue to the states as though state legislatures are the default forum for resolving these questions, I think begs the question: Why should state legislatures resolve this rather than Congress or the Courts?
The conservative justices seem very eager to have people believe that the Court is actually maintaining a position of neutrality on the question of fundamental rights here. Again, they insist they’re just throwing it back to the states. Is neutrality actually possible in a case like this?
No. I mean, keep in mind what is being decided is whether some words that were drafted 150 years ago — that Congress 150 years ago told courts to interpret — protect abortion rights. And those words are like, equal protection of law and due process, or deprivation of liberty, or life without due process of law.
There’s no neutral answer to the question of whether the deprivation of liberty without due process of law, or denying or abridging the privileges and immunities of citizenship, or denying the equal protection of the law, requires or prohibits an abortion ban. The words just don’t say anything about it.
And so to suggest that neutrality would lead to an answer, I think, is misguided. I think any interpretation is going to be justified by certain normative principles. Like, do you believe in the dignity and equal citizenship of pregnant people? Do you think that fetuses are individuals who should have rights of citizenship? Do you think that what equal protection requires is whatever a state legislature thinks?
I mean, these are just the normative principles underlying any interpretation of this language. And so to suggest that one is more neutral than the others is just to put your thumb on the scale and say my normative principles are neutral to me, and yours are activism.
Is it fair to say that the Court had a choice between exercising power and preserving its legitimacy and it chose to exercise power?
I would not adopt that framing because I think the term legitimacy needs to be defined.
So when the Supreme Court itself has discussed legitimacy, the case in which the Court gave its longest discussion of the term legitimacy before Dobbs was Planned Parenthood v. Casey — the opinion that had upheld the essential holding of Roe in the early 1990s.
And in that case, three Republican appointees, Anthony Kennedy, David Souter, and Sandra Day O’Connor, authored this joint opinion in which they asked the question, why do people listen to the Supreme Court? Why don’t they just treat our opinions as no different from a press release by a conservative senator, or a liberal senator? Why do they take our opinions and do things with it?
And their answer to that question was legitimacy. They defined the term legitimacy as basically, the general understanding among the American public, that when the Court issues an opinion, what it is doing is engaging in this principled analysis, as opposed to just exercising the individual views of the justices.
I think what’s most significant about the Court’s definition of legitimacy is, it’s not based on the Court actually being neutral. It’s based on the public’s perception that the Court is neutral, or engaged in something different from politics.
So this Court’s self-definition of legitimacy is, what does the public think we’re doing?
From that perspective, yes, today’s Court had a choice of, do we want to cultivate this public perception that what we are doing is different from, say, what five Ted Cruzes would do if he were on the Court? Or, you know, you can get a Supreme Court of former clerks that are currently in Congress, like Josh Hawley or Ted Cruz, and then like Mitch McConnell, you take five of them, give them robes and a gavel — is what we’re doing different from what they would do?
And to the extent that the public believed there is this distinction between the two, then yes, I think that today’s Court basically does not care about that distinction. In the Dobbs opinion, Justice Alito explicitly said, it’s not our job to care about public opinion. We shouldn’t take that into consideration at all.
But I think what the Court is realizing, especially in the last few weeks, is, if you do not care about public opinion, and you do something that’s extremely controversial, you risk the public turning on you. And eventually at some point, if you anger enough people, the public will stop listening and start doing something to reform your power.
There has been a lot of conversation in recent years, mostly on the political left, about potential reforms to the Court. People talk about everything from abolishing judicial review to court-packing to setting term limits for justices. Do any of these reforms make sense to you? And perhaps even more importantly, do you see a viable path to passing any of them?
Let me start by saying, yes, I do see a viable path to a good outcome. So, I don’t wanna hide the ball — I think we don’t have to live in this world.
But before getting there I guess I would just sort of start with first principles. Which is, if we live in a democratic society, we have these fundamental disagreements about questions like, how many guns should be available, and who should be able to obtain abortions in what context, and what should we do about this impending climate catastrophe?
Which institutions should be responsible for resolving these fundamental disagreements? And it’s no answer to say, well, whatever the Constitution says. In part, because the Constitution just does not provide clear answers about it. And in part, because I think even that has to be justified. Like, why should we in 2022, responding to 2022 crises, turn to a document written by people who really did not have any way of anticipating what we are currently undergoing?
So for me, looking around, what do other countries do? In most other democratic societies, national legislatures are responsible for making these determinations, particularly democratically responsive national legislatures. From the United Kingdom to France and Germany and New Zealand — in general, these sorts of questions are decided by national legislation. And national legislation enacted through far more democratic legislatures than the United States Congress.
So I would love to see a more democratic Congress. I would love to see reforms to Congress to make it more democratic.
But even the Congress we have now, I think, is a better answer to the question of who should resolve these questions than another institution like state legislatures, or local governments, or neighborhood associations, or federal or state courts.
That’s the real question: Which of these institutions should be responsible for resolving these fundamental questions in a democracy? I think a national legislature is what I would turn to, particularly one that is the beneficiary of democratic reforms enacted by that national legislature, like a Voting Rights Act.
From that first principle, I think the best methods of advancing Court reform are federal laws enacted by the national legislature that both make it more democratic, as well as reduce the power of other institutions that are not as democratically representative, that do not treat all members as political equals, and prevent them from interfering with the national legislature’s output.
The history of the Supreme Court’s evaluation of federal legislation is just … it’s a terrible track record. And so in practice, I don’t think there is a reason why we should necessarily give a federal court the power to invalidate national legislation.
From a theoretical perspective, I don’t think there’s any democratic reason why you would want unelected officials making determinations that, you know, I’m sorry, but a Voting Rights Act is not, quote-unquote, appropriate. There’s just nothing about being a judge or going to Harvard Law School that gives you any expertise as to whether a Voting Rights Act is appropriate or not. It’s just fundamentally a question that in a democracy should be resolved by a community of political equals.
So getting there is just gonna require Congress over time to enact legislation that protects fundamental rights that makes itself and the rest of the country more democratic.
And that also keeps other institutions, whether state legislatures or federal courts, from advancing their own more parochial or anti-democratic views and trying to enforce those over the will of the American people.
I think what that sort of legislation will likely look like is, when Congress enacts laws like a new Voting Rights Act, or like the Women’s Health Protection Act or like a new Clean Air Act, that it just prohibits Courts from undermining that legislation. So the Constitution that we currently have gives Congress the power to regulate the jurisdiction of federal courts; gives Congress the power to regulate what a federal court can do when it sees a law that the individual judge doesn’t like.
In the 1930s, when federal judges were going around enjoining labor unions, Congress thought this should not be what federal judges do. So they just took away the power of judges to enjoin labor unions, absent certain conditions. Congress could do the same thing when judges review federal laws, or when it tries to interpret laws like the Clean Air Act.
So I think there’s a lot that Congress could do to limit the power of courts to interfere with the will of a democratic nation — just like almost every other peer democracy does. This is not a radical position anywhere else in the world, except for in the United States of America.