Monday, January 13, 2020

Supreme Overreaching: The Justices Should Return Gun Control, Affirmative Action, and Abortion to the States

By Eric Segall

President Trump successfully made the Supreme Court an important election year issue in 2016, and he is likely to do so again in 2020. This strategy works because for a long time the Justices have improperly placed themselves in the middle of many of our most important political, social, and cultural disputes. But elections shouldn’t be about judges, and courts shouldn’t be this important. 
In a recent essay for Dissent magazine, Yale Professor Samuel Moyn wrote an excellent piece criticizing what he calls our “juristocracy.” According to Moyn, judicial review
has been a disaster for the democratic premise that the people themselves choose their own arrangements, shunting decision-making to a council of elders supposedly possessed of unique wisdom. And in exchange for its antidemocratic premises, juristocracy has not delivered the goods that popular interests and needs require. Only democratic politics can.
Why do we give unelected, life-tenured judges the important power to overturn state and federal laws? The original and best justification for judicial review is that our written Constitution forecloses some choices elected leaders may make, and we need an independent branch of government to enforce those limitations. This system makes sense where the Constitution’s rules are reasonably clear. However, the Supreme Court has for a long time taken it upon itself to invalidate legislation even when constitutional text is imprecise, its original meaning very much in doubt, and reasonable people can disagree over whether the Constitution should foreclose specific voter decisions.
Another justification for judicial review, forcefully argued by Professor John Hart Ely in his classic book Democracy and Distrust, is that the Court’s primary obligation is to make sure that our democracy is robust and our elections fair. Therefore, he argued that state and federal laws infringing freedom of speech and the right to vote should be reviewed carefully by the judicial branch.
Neither of those rationales however justifies much of the Supreme Court’s interference in normal politics. Three hugely controversial areas of public policy where the Court has wrongfully inserted itself are abortion, affirmative action, and gun control. The lower courts are full of cases in each category, with judges wrestling with unclear and often contradictory Supreme Court rulings. This term the Supreme Court has both gun control and abortion cases on its docket, and important affirmative action lawsuits are percolating in the lower courts against Harvard University and the University of North Carolina at Chapel Hill.
There is simply nothing in the text or history of the Constitution that privileges a woman’s freedom to terminate her pregnancy over state concerns for the fetus. Similarly, the Constitution says nothing, outside the context of a “well-regulated militia,” about the proper balance between gun rights and gun safety. And, there is nothing in the Constitution’s text prohibiting the use by public universities of racial preferences to assist traditionally disadvantaged minorities, and if anything, the history of the Fourteenth Amendment suggests such preferences are fully constitutional. In all three areas, the Justices have relied on their own values, politics, and experiences, not text or history, to reach their decisions.
The costs of this aggressive judicial interference have been high. For example, the Court’s involvement in abortion politics has infected local, state, and federal elections, and judicial confirmation hearings, in unhealthy ways for almost fifty years, and often in ways that have nothing to do with abortion. Moreover, even with judicial involvement, poor women, especially in rural areas, still face substantial obstacles to obtaining safe abortions. And, there is little doubt that, although abortion will be divisive in any government setting, the who-gets-to-decide question has made it immensely more difficult for both sides to compromise on this most difficult issue.
It is well past time for the Justices to leave this contentious debate to the American people where it belongs (those who are pro-choice may be pleasantly surprised where this debate ends if we could address it directly without the overlay of inappropriate judicial behavior).
This country went more than 200 years without the Supreme Court finding in the Second Amendment a personal right to own guns. Ever since 2008, however, when the Court first announced in District of Columbia v. Heller that the Constitution protects the right to own a handgun in the home for self-defense, the lower courts have been flooded with lawsuits challenging a wide variety of gun laws passed by state, city, and local legislatures. This litigation is time consuming, expensive, and unnecessary.
Justice Thomas, along with many gun rights advocates, often like to analogize the Second Amendment "right" to bear arms with the First Amendment right to freedom of speech. This analogy is off base for many reasons including the undeniable fact that many democracies all over the world have few or no gun rights whereas no democracy can flourish without robust freedom of speech. But even assuming a personal right to own guns exists under an Amendment the text and history of which is concerned with organized militias, no right is absolute and all rights have to give way to serious public safety concerns. For example, no group has the right to hold a march in Times Square on a Saturday night because the Court has long recognized that all speech, even political speech, is subject to time, place, and manner restrictions. Currently a woman's right to abortion is subject to state restrictions as long as they don't pose an undue burden on the right to choose (even if the regulation is intended to favor child-birth over abortion).
The Court should show even more deference to reasonable limitations on gun rights, given the serious public safety issues at stake. Moreover, which restrictions are reasonable and which aren't may well vary dramatically by geography. The appropriate balance between gun rights and gun safety in rural Georgia is obviously different than the correct balance in Times Square. National rules devised by federal judges simply cannot capture different local conditions. Absent completely irrational legislation, the Justices should allow the people and the men and women they vote into office to figure out where gun rights end and public safety concerns begin.
As for affirmative action, the total exclusion by public institutions of one race, even the white one, would certainly violate the Fourteenth Amendment’s equal protection clause, but that is not how schools are using racial preferences. Rather, in most cases, these preferences are intended to increase diversity and racial tolerance by admitting greater number of minorities to mostly white campuses. Moreover, although the Court has said that the goal of remedying centuries of slavery, segregation, and racial discrimination is not a proper justification for affirmative action, there is no legal basis for that political value judgment.
Although racial preferences may cause unwanted backlash or unfair stigma, those are questions of public policy for academic administrators, voters, and politicians to weigh against the benefits of affirmative action. The right balance, again absent irrational practices, should be left up to the people.
If Chief Justice John Roberts truly wants the American people to view judges in general and the Supreme Court in particular as non-political, as he claims, a first and necessary step would be for him to convince at least four of his brethren that the Court needs to step away from all three of these divisive issues as none of them violate clear constitutional text or well-accepted historical accounts of that text.
The Supreme Court has played much too large a role in our system of government for far too long. The Justices should let politics run its course absent clear constitutional mistakes by elected leaders. As Professor Moyn pointed out, “Juristocracy or democracy? It is an easy call. A good start to restoring robust democracy would be to for the Court to extricate itself from the politics of abortion, gun control, and affirmative action.


Michael C. Dorf said...

Eric does an excellent job here of stating the case for a more modest role for the US Supreme Court. I do not agree with his bottom line for multiple reasons, one of which is that I believe he focuses on the wrong target. Countermajoritarian judicial protection of human rights was once a largely American institution, but over the last three quarters of a century it has become the norm in constitutional democracies -- even countries, like the UK, that nominally have parliamentary supremacy. Two differences stand out between the US and most of those other countries. First, the US alone has life-tenured justices; and second, decisions of our Supreme Court are supremely difficult to change. "Soft" review via the UK Human Rights Act or the Canadian notwithstanding clause allow for greater dialogue between the political branches and constitutional courts elsewhere, thus taking some of the bite out of strongly countermajoritarian decisions when they are made. I know that Eric is also a critic of the features of the US system I identify above, so it seems to me that, at the least, the argument for something like Thayerian judicial restraint of the sort presented above ought to be clearly premised on the assumption that the other features of our system won't change. Even so, I disagree with the bottom line, but I think his argument is stronger if made conditionally rather than, as a casual reader might infer, as a proposition of the best first-order constitutional design.

Eric Segall said...

As I’ve argued before, my distaste for US aggressive judicial review is based on a perfect storm of many different factors: life tenure, difficulty of constitutional amendment, long tradition of strong review, and no effective way of overturning the decisions other than changing the Court. No other country comes close to that system. Change a couple of those factors, and I might feel differently.

Marty Lederman said...

It appears your complaint here, Eric, isn't with "judicial review," as such, or with life tenure--otherwise there'd be no reason to single out such hot-button issues from all the others in which the Court decides whether governmental conduct is consistent with the Constitution. Instead, it appears you simply believe the Court has gotten these doctrines *wrong on the merits*--i.e., that there's no warrant in the Constitution for limiting abortion, gun control and affirmative action laws. OK. But would you also for some reason preclude the Court from holding--in the context of a actual controversy (a state limits an individual's liberty) over which the Court has jurisdiction--that government conduct is unlawful even where you agree that the law, or the executive conduct, is obviously inconsistent with the Constitution? If so, why? (In other words, a proposal to limit "judicial review" as such (what would that mean, as a practical matter) should be tested against a case in which you agree that the state has patently violated the Constitution.

Joe said...

No single comment is going to convince anyone so I will just provide a minimal response that is not meant to be complete in any fashion.

Abortion regulations are often TRAP laws that single out specific types of medical procedures that burden women because of religious reasons or a specific view of proper roles of women (this is the purpose/effect of such laws).

This violates multiple amendments in the Constitution. As Andrew Koppelman and Dawn Johnson (to name but two) discussed, this can very well easily be shown to include the Thirteen Amendment. Eric Segall also praised the book "Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century" by Prof. Geoffrey Stone that provides a lot of analysis on the historical and legal issues here.

It is apparently clear and obvious that same sex marriage is protected by the Constitution (I readily agree) though the Supreme Court split 5-4 and a strong minority passionately disagree. And, marriage involves public acts, while antiabortion laws can include the state reaching out to stop private medical decisions even regarding rape victims. This is not just a policy issue. I'm readily aware of the professor's strong support there. I can understand the concern for judicial ability here, but the argument goes further than that.

Affirmative action involves drawing lines on something that the courts obviously have some power over -- rules involving race discrimination. The Constitution is less clear on guns though for a long time there was a general understanding that there was some right to own guns. It then is a matter of the range of discretion akin perhaps to something like partisan gerrymandering. Heller itself left open a broad range of regulations though the Kavanaugh Court will be less open than the Kennedy Court.

I respect the dissenting view but strongly disagree on abortion rights. Anyway, there will be cases there where the courts would be appropriately involved even with that mentality. For instance, if the government selectively forces clinics to include ideological messages while allowing "crisis pregnancy clinics" that uses ultrasounds etc. not to do so. Of course, we still will have lots of state court actions, including in places like California with large populations, often applying similar constitutional provisions than the ones here deemed not to cover abortion. This again goes beyond the "not a court" concern though the conclusion here is a result of a collection of arguments.

Joe said...

Dawn Johnsen.

Eric Segall said...

Marty, from Supreme Myths to Originalism as Faith and the six years in between I have argued that clear error review is the answer (like appellate judges reviewing the factual findings of lower courts). I know that won't happen the way the Court is currently structured which is why I have also advocated for many reforms. But as between no review and super aggressive review, I think I favor no review. FWIW, I think Brown, US v. Virginia, and Obergefell are right (as a matter of text) and almost everything else outside the 4th-8th Amendments is wrong. Much more in my academic piece that is in progress.

What I am sure about, is that courts should not be this important because that infects the rest of our political system in negative ways as Samuel Moyn has argued so well.

Eric Segall said...

Joe, the issue for me is not which cases should come out which way as much as humility, modesty, and transparency across the board.

Marty Lederman said...

Clear error review of all government actions?: by legislatures and executives and police, etc.; state and federal; constitutional and statutory and regulatory?

Eric Segall said...

Yes. You know the people we elect to run things and the people they appoint to run things. Absent a clear constitutional violation, why would we give lawyers a veto power over such things?

Andrew Hyman said...

The framers didn’t write that, “the right of the MILITIA to keep and bear arms shall not be infringed.” For better or worse they instead wrote more broadly that, “the right of the PEOPLE to keep and bear arms shall not be infringed.” This amendment must not be read as though the word “people” was a drafting error. The word “people” is obviously broader than the word “militia.”

Karst said...

I wonder how you would deal with issues such as the teaching of evolution in public schools? There are still many legislators in multiple states who would outlaw teaching evolution in biology classes, or demand equal balance treatment for creationism or intelligent design in biology and earth science classes. Or put restrictions on teaching about the Big Bang, or evidence for a 4.55 billion year old earth or 13.7 billion year old universe? Simplifying, the Supreme Court in several cases, and the court in the Dover case, basically all ruled that such requirements promoted religion and so could be ruled unconstitutional. Would your preferred approach result in allowing the states to do whatever they want in this realm, as being best decided by political processes?

Marty Lederman said...

OK, just wanted to test how broad your view is about judicial deference to government more broadly: As I understand it, you'd propose that federal courts (state courts, too?) engage in only "clear error" review of *all* government actions, by all government actors (legislative or exec., state, federal or local), and regardless of the nature of the challenge (constitutional or otherwise).

Pretty radical! But I do appreciate the clarification, and the candor.

Eric Segall said...

Marty at least I want clear error review, s few folks out there don’t even want that :). I don’t care what state courts do with state laws. Karst, we can all pick areas where we like judicial interference and pick worst case scenarios but on balance I believe aggressive judicial review has done much more harm than good from Dred Scott to Civil Rights Cases to Lochner plus 200 to Shelby County to Gratz to Janus and beyond.

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Joe said...

When a state is approaching forty million, like California, or even smaller, state courts does seem to matter here. But, there are differences, obviously.

Reference is made to text, but in an earlier post on this blog, Prof. Segall decided that unenumerated rights are not in practice different enough to be the deciding factor.

There always seems to be exceptions when judicial restraint as a principle is given. So, e.g., same sex marriage is seen as a clear case though a significant group of people disagree it should be in this context as compared to abortion. In Prof. Segall's first book, he skipped over a whole range of criminal justice cases, arguing courts at least has more skills to decide them. But, we are talking a lot of material there, including many social policy questions mixed in like the death penalty. Then, some use the "Footnote Four" model that argues stronger judicial power should be applied to promote democracy, equality and clear textual commands.

(An idiosyncratic case here is topless bans which came up in passing in yesterday's Order List, the Supreme Court not taking a case dealing with that. Prof. Segall wrote an article saying topless bans are clearly wrong using multiple constitutional interpretative approaches. But, I'm sure many would disagree with him using a strong judicial restraint model.)

I appreciate the consistency here -- "I'm strongly for abortion rights but ..." -- but you also have to look at the merits. Just covering old ground by saying this, of course. If Prof. Segall can reasonably disagree with Federalist Society folk (at least those that don't blatantly enable Trump), I can reasonably disagree with him.