In Richard Wolf’s May 10 column, This Supreme Court doesn’t deserve to rule on Roe, he states, “Some of the most destructive rulings by the high court in recent years have come from a narrow 5-4 majority insisting on all or nothing.” This liberal columnist is not alone in his frustration with this lack of unanimity. There are plenty of us conservatives who likewise see the delegitimizing consequences which such decisions are having on the Court’s prestige and authority. Judge Learned Hand in the 1950s warned us that nonunanimous decisions were “disastrous” because they vitiate “the impact of monolithic solidarity on which the authority of a bench of judges so largely depends.” But the prevalence of 5-4 decisions is nothing new, right? Wrong!
The proliferation of nonunanimous decisions began around 1940. Drew Lanier, in Of Time and Judicial Behavior, researched the patterns of Supreme Court decision-making and behavior from 1888 to 1997. His scholarship found the Court had a unanimity rate of 83% from 1888 to 1940, only to collapse to 40% from 1940 to 1997. This is a catastrophic drop of 42%, a shocking development. (See figure 10)
When the Court makes 5-4 decisions which massively impacts American policy and culture, we can’t be blamed for thinking the Court is only guessing. Who would drive their family across a bridge when engineers were of a 5-4 opinion the bridge is safe? Yet, the Court has for decades now been driving America across bridges of major policy changes on a modicum of agreement.
So, what facilitated this collapse of unanimity? Explaining it is a major objective of Part 3 of my upcoming book, The Joy of Interpretation (and the Misery: How Interpretation Impacts Your Life). What killed unanimity was the development of the interpretive theory known as Living Constitutionalism, which started gaining traction in 1940s with the appointment of judges sympathetic to its tenets. It was this change which allowed the Supreme Court to become the primary policymaker, radically transforming the American political system. The Court ceased being referees and became policy entrepreneurs. Prior to that the Court was populated by originalists. Granted, originalists don’t always agree, but at least they do agree the goal of interpretation is original intent. On the other hand, Living Constitutionalists are never sure what their goal is, other than instigating their latest political preferences.
Wolf believes the present Court is motivated by politics when addressing Roe v. Wade, and for him, it is wrong for doing so. But it is the fundamental tenet of Living Constitutionalism that the Constitution’s meaning is not fixed and should be open to evolving. What does Wolf think would be the driving force of that evolution? Quantum physics? Genome sequencing? Whale migration? It’s been liberal politics. And if the Court reverses Roe v. Wade, isn’t that just the Constitution “evolving”? Or is it only evolving when it develops all long liberal, progressive lines?
If all nine justices were Living Constitutionalists it is most probable a high rate of unanimity would be achieved. But at what cost? Their decision-making would further erode our Founders’ purposes. Originalists have salvaged what remnants they could from decades of liberal and leftist judicial subterfuge. And now with an originalist majority they should be able to salvage more.
America and the Court were originalists prior the rise of Living Constitutionalism. So much so that in 1920 Americans still knew the legitimate and democratic means for amending the Constitution was Article V’s amendment process. Thus, the 19th Amendment extended women’s right to vote to all States. It took two thirds of both houses of Congress and three fourths of the States, a task requiring massive democratic participation. But who doubts if women’s suffrage had been postponed until recent times that the Court would be the chosen means by which Living Constitutionalist judges would “amend” the Constitution. It’s much easier to circumvent Article V and persuade five judges than to persuade millions of Americans. For sure, these judges are always willing to gift policies which are more promiscuous and “progressive” than that desired by the American people and their legislatures. And isn’t that the point of their judicial behavior? And is that not what they did in the 5-4 decision of Obergefell v. Hodges?
Liberals and Leftists prefer an authoritarian judicial regime they agree with instead of legislative majorities they disagree with. They cannot imagine a revival of federalism, which is what a reversal of Roe would be doing. This Court appears willing to nullify this unratified “judge-made amendment.” It would be an act of shrinking the Court’s jurisdictional domain by returning that domain to its rightful constitutionally prescribed owners—the people and their legislatures. Putin needs to stop annexing territory not his—so does the U.S. Supreme Court.
Steve Richardson
steverichardson1818@gmail.com
850-867-5603