I'm pretty sure that the "perceptions of right and wrong" that Guinier has in mind aren't perceptions of what counts as a correct or an incorrect interpretation of the law. She’s saying, reasonably enough, that since the Supreme Court can’t help sending signals about what’s morally right and wrong, it makes sense, other things being equal, to appoint the judges who you think will send the best moral signals. (Although it would be interesting to hear exactly what moral signal she thinks the Court was sending in Citizens United.) In the rest of her post, Guinier explains why she thinks her friend Hillary Clinton would be the best available signal-sender (my emphasis):“Through their opinions, judges send messages to “We, the People,” as to what is possible. There are many examples, from Brown v. Board of Education to the recent Citizens United case, where Justices of the Supreme Court seek to place their imprimatur on perceptions of what is right and wrong.”
I’ve given my reasons here for not being wild about the idea of appointing a politician to the Supreme Court. But I think Guinier’s position on how We, the People should to respond to the Court’s inevitable moral signals is exactly the right one for liberals to take. We should listen attentively for the moral implications of judicial opinions, but we haven’t the slightest obligation to take any court’s moral signals to heart. It’s the job of citizens “to meditate . . . on the meaning of the Constitution” conscientiously and independently, especially when that means disagreeing with judges."[I]magine a justice who invites 18 million cracks in the glass ceiling to participate in a public debate about the meaning of constitutional principles. Imagine a justice writing in dissent, who, as a former Secretary of State brings a world (literally) of experience to the court. Imagine how she, in the model of governor-turned-Justice Earl Warren, might summon progressive activists and politicians to meditate equally on the meaning of the Constitution.”
Lots of liberals and judges take a different view: they think that, because interpreting the law is crucially a matter of making moral sense of it, courts speak with special moral authority. Consider in this light how the Supreme Court explained itself in Planned Parenthood v. Casey. That 1992 case was a pleasant surprise for a lot of us pro-choice liberals because the Court unexpectedly (because it consisted mostly of Republican appointees) affirmed that women have a constitutional right to an abortion in the face of the formidable political pressure generated by the right-to-life movement. The controlling plurality opinion cited several grounds for this conclusion, but one in particular warrants our attention. The plurality thought that the Court needed to reaffirm the constitutional right to an abortion emphatically because any appearance that it was caving in to pro-life pressure would undermine not only its own legitimacy, but the People’s commitment to the rule of law (my emphasis):
Here was the highest court in the land, urged on by the liberal community, reserving for itself the role not only of interpreting the law, but of nurturing the People’s moral and civic character by directing oblivious right-to-lifers how “to see [themselves] through [their] constitutional ideas.” What’s more, at least three Supreme Court justices were persuaded that people’s readiness to reinterpret themselves in light of a judicial opinion is an authoritative measure of the People’s commitment to the “rule of law.” That apparently meant, in the plurality’s eyes, that pro-lifers have a civic obligation to keep their mouths shut going forward.“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideas. The Court’s concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.”
The Casey plurality was claiming a measure of moral authority for the Court that no other office-holder in a constitutional democracy would ever think of claiming. It’s one thing to say that courts are authorized “to settle” issues about the meaning and constitutionality of a statute for the time being by authoritatively interpreting the law. That’s been a fixed point of our constitutional jurisprudence since Chief Justice John Marshall, writing in 1803 for the United States Supreme Court in Marbury v. Madison, declared that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” That soon-to-be uncontroversial statement implies that, in our constitutional system, whenever a duly constituted court acting within its jurisdiction pronounces on the meaning or the constitutionality of a legal rule, the other branches of government and political subjects are obligated to defer even if they still think that the court got the law wrong.
Properly adjudicated court holdings, in other words, are legitimate public decisions in the same sense that applies to the duly enacted decisions made by the other branches of government. But as I’ve stressed many times on this blog, the legitimacy of a decision is one thing, its rightness something else entirely. Citizens have a political obligation to each other to abide by duly enacted public decisions. Yet that doesn’t mean that they’re obligated to believe that those decisions are legally or morally correct. Any such interpretation of Justice Marshall’s words respecting judicial decisions not only runs afoul of the laws of logic, but ignores basic structural features of our constitutional system.
Take the logical point first. Belief is involuntary; you either believe something or you don’t depending on whether you think you have sufficient grounds. As a matter of simple logic, then, you can’t incur any civic obligation to believe something is legally or morally correct just because a court says it. So long as you think that belief is unwarranted on the legal or moral merits, that would be an obligation to do something impossible. The most you can conceivably be obligated to do in your capacity as a citizen is to keep your doubts about the rightness of a court’s decision to yourself.
Yet that’s something our constitutional system plainly doesn’t require you to do. Indeed, it presents every citizen with a standing invitation openly to express, and to act on, the belief that a court has misinterpreted the law. It’s not just that we have a First Amendment right to state our objections to public decisions and seek redress of grievance from public decision-makers. The U.S. Constitution plainly gives the People the right to try to overturn Supreme Court decisions either by constitutional amendment (as it did with the Sixteenth Amendment respecting the income tax) or by electing presidents who will change the composition of the federal bench before the courts revisit a legal issue.
None of this, of course, is news to liberals. They certainly didn’t keep quiet about their disagreement with the holding of Bowers v. Hardwick, the 1986 Supreme Court decision holding that there’s no right to consensual sodomy under the due process clause of the Fourteenth Amendment. That wasn’t, like Casey, an example of a court presuming to tell the public what to think about an issue of sexual and political morality. The U.S. Supreme Court merely held that public decisions about the legality of sodomy had to be made through legislative enactment or its absence.
The liberal community responded to the Bowers holding with a well-orchestrated campaign of judicial politics. Liberals contested and succeeded in blocking the appointment to the Supreme Court of Judge Robert Bork, who’d surely have upheld Bowers; they elected a Democratic president whose appointment of two new Supreme Court justices, Justices Ginsberg and Breyer, shifted the balance on the Court in privacy cases; and liberal advocacy groups mounted a succession of court cases that invited the reconstituted Supreme Court to revisit its Bowers holding. Liberal efforts were rewarded in 2003 when the Supreme Court held, in Lawrence v. Texas—in an opinion authored by the Justice Kennedy, who took the place on the court that Judge Bork would have taken had he been confirmed, and joined by Justice Ginsberg, who’d replaced Justice White, the author of the opinion for the Court in Bowers—that laws criminalizing consensual sodomy were unconstitutional.
A lot of liberals celebrate the process that culminated in Lawrence as an exemplary display of democratic citizenship, but pretend, as a matter of political morality, that liberal legal precedents are set in stone—think of the widespread liberal reaction that it wasn’t just wrong-headed, but somehow illegitimate for the Supreme Court to upend legal precedents to reach the result of Citizens United. They could learn a thing or two from Lani Guinier.