Take this piece by Dahlia Lithwick. She’s arguing, convincingly, that women’s constitutional right to an abortion is being hollowed out by recent state laws restricting abortion in ways that are plainly inconsistent with binding Supreme Court precedent. Worse, those laws aren’t being challenged in court by abortion rights advocates because they don’t want to provide the conservative majority on the Supreme Court with an occasion to overturn those precedents.
So far so good. But then Lithwick punctuates her argument with some casual speculation that all of this suits the conservatives on the Supreme Court just fine, because it enables them to promote their political objectives without spending any of their judicial capital.
“There's one other (often forgotten) player in this elaborate game of chicken over reproductive rights, and that's the Supreme Court. Given that public opinion has changed virtually not at all since Roe v. Wade, my guess is still that the Roberts court is as uninterested in overturning the law as its challengers are in forcing the issue. It does not want to be the court that makes abortion illegal, or all-but-illegal, in America. The backlash would be staggering. The conservatives on the court are much happier with the status quo, allowing abortion as a matter of federal law while the states effectively outlaw it as a matter of fact. If the states continue to hollow out Roe from the core, there will be no reason for the court to hear an abortion case ever again.”Stop and think about how frivolously presumptuous this is. There are two steps to Lithwick’s exercise in mind reading. First, she attributes to the conservative justices a political preference against abortion, and then she presumes that, in a crunch, they all care more about satisfying that preference than in getting the law of abortion right. Is there any evidence for either step?
Like all responsible judges, the conservatives on the Supreme Court haven’t been forthcoming about their views on the morality and politics of abortion. Yes, they were all appointed by pro-life presidents, but so were Justices O'Connor, Kennedy and Souter before they held that there's a constitutional right to abortion. Yes, they were all practicing Republicans before they were judges, and still are practicing Catholics now that they’re on the bench. But there are lots of pro-choice Republican Catholics and the urgency that pro-life Republican Catholics attach to ending legal abortion varies widely relative to competing objectives.
How does Lithwick get to the conclusion that all the conservative justices (including Kennedy, Scalia and Thomas who've been on different sides of past abortion cases) all think substantially the same thing about the morality and legality of abortion? And where, for that matter, does she get off saying that they’d rather not hear another abortion case? I find it impossible to read Justices Thomas’s and Scalia’s dissents in abortion cases without suspecting that they’d love to have another go at overturning Roe.
It's bad enough that Lithwick’s just talking through her hat. What makes it worse is that, even if you think that all judges really are political hacks, there’s a good reason for not saying it out loud. Maybe any judge’s claim to have pristinely legal reasons for reaching a politically charged constitutional decision is largely pretextual, but it’s a civically useful pretext all the same because it's hard to make sense of the legitimacy of judicial decisions without it.
That's one reason why, for all their differences, judicial conservatives and liberals have both taken the trouble to assimilate their constitutional jurisprudence to recognizably legal methodologies. Very roughly, conservative “originalists” read open-ended constitutional provisions the way lawyers expect a judge to read a statute or a contract, by attending to the plain meaning of its terms and, where that isn’t dispositive, trying to figure out what ambiguous terms meant to people who drafted and ratified the provision in question. Judicial liberals apply something more like common law adjudication to the same constitutional provisions, a method that invites judges to use their best moral judgment to bring coherence and normative integrity to the developing body of constitutional law.
Conservatives and liberals have traditionally agreed, however, that judges only render legitimate judicial decisions when they tell us a story about how, given the facts before them, their decision uniquely accords with the applicable legal principles. That means that, even if judges can’t help playing politics, they’re supposed to play it according to different rules than representative politicians from whom we routinely expect unprincipled behavior when it enables them to secure some ephemeral political advantage or promote their constituents’ interests more effectively.
It’s hard to see the point of the constitutional separation of powers if politicians and judges play by the same rules. So, if you’re going to insinuate that a judge with whom you disagree on a point of law is a political hack in a black robe, you should be ready to bear an especially weighty burden of proof. Otherwise, you’re assaulting the legitimacy of all judicial decisions—even the ones you agree with.