Dobbs Footnote 48, Precedent, and why the Supreme Court is not a Court

 By Eric Segall

Readers of this blog likely know that I wrote a book in 2012 arguing that the Supreme Court is not a court and its Justices are not judges. My thesis was and is based on a perfect storm of factors, including the institutional design of the Court and our country, historical practices, and human nature. Taking these factors together, I concluded that the Supreme Court in practice makes all- things-considered decisions, not legal decisions, with the only real constraint being the Justices’  own views on what the American people and the elected branches will tolerate or accept. Here is a quick summary of those factors:

1) Most of the Constitution's litigated clauses are hopelessly imprecise;

2) Our Constitution is virtually impossible to amend and extremely old;

3) The people who serve on this institution hold their offices for life;

4) We have a strong tradition of aggressive judicial review dating back to at least 1857 (Dred Scott);

5) The Court's decisions are effectively unreviewable; and

6) The Justices do not now and never have taken positive law sources, including their own prior decisions, even minimally seriously when deciding cases (as opposed to explaining their own decisions, thus leading to a huge transparency gap).

Now let's examine each factor in turn.

1) The Supreme Court rarely hears constitutional cases involving clear text such as the President must be at least 35 years old or there must be two Senators from every state. The litigated cases involve texts like "freedom of speech," "due process," "equal protection," "cruel and unusual punishment," "free exercise of religion," "unreasonable searches and seizures," and similar aspirations we all agree with in principle but disagree about in practice. I do not find this claim to be reasonably arguable.

2) It takes a super-majority of Congress and the states to amend the Constitution. After the Bill of Rights was added in 1791, our Constitution has been amended 17 times in 232 years (someone check my math, I'm a law professor). That our Constitution is old and extremely difficult to amend are not debatable propositions.

3) Our Justices have life tenure unless they commit a crime.

4) We can reasonably debate what aggressive judicial review means but there is no doubt the Court has invalidated hundreds of important state and federal laws defining who we are as a people and a country.

5) The only way to legally or formally reverse a Supreme Court constitutional decision is to pass a constitutional amendment, which is incredibly unlikely (see factor 2) or for the Court to reverse itself. These points are not reasonably debatable.

6) The Court does not take prior positive law minimally seriously enough for that law to act as a constraint. This factor is obviously the most important and contestable and is discussed below. But first we have to agree that, if tomorrow, the Justices issued a statement that they will in the future make all-things-considered decisions and prior positive law was non-binding on them, we would not consider such an institution a court of law. If you disagree with that statement in the abstract, then you might want to stop reading.

What do I mean by prior positive law? For our purposes it is enough to oversimply a bit and list constitutional text and prior cases. An institution that is bound by neither is simply not a court of law. 

In the Harvard Law Review and this blog, I have detailed the many ways the Supreme Court does not care about text. I will not repeat the legions of cases I discuss in both places. For now it is enough to note that in the text of the Constitution there is no federal equal protection clause, no dormant commerce clause, no text barring Congress from employing state legislatures and executives to enforce and implement federal law, no text barring states from being sued by their own citizens, no right to travel, use contraception, raise one's children as they see fit, send their kids to private school, or refuse unwarranted medical treatment. Yet, the Court has announced all of the above and lots more that is not in the Constitution, leading major scholars to write books like our "Invisible Constitution," and  "America's Unwritten Constitution." .

The more contestable point is how much, if at all, the Court cares about its own prior case law. This factor leads us to the very lengthy footnote 48 in Dobbs v. Jackson Women's Health, and what Justice Angry Alito called a "partial list" of the times when the Court reversed itself. I strongly suggest you read it. I predict it will leave you breathless. Here are representative samples (please forgive the absence of hyper-links). Most of these reversals are in footnote 48, a few are not:

First the Court held (by summary affirmance) that there was no right to same sex-marriage, now there is such a right.

First the Court held there was a fundamental right to abortion, then it was a protected right, now there's no right to an abortion.

First the Court held formal legal segregation under state law did not violate the Constitution, now it does.

First the Court held that private consensual sexual relations between two people of the same sex was not constitutionally protected, now it is.

First the Court held that most generally available government aid to religious schools violated the Establishment Clause, then the Court held that such aid was constitutional, and now such aid is constitutionally required under the free exercise clause.

First the Court held that the 11th Amendment could be abrogated by Congress under its commerce clause authority, now Congress lacks that power.

First the Court held Congress could require the states to help it implement its federal enumerated powers, then the Court held Congress could not do so, then the Court held Congress could do so, and now Congress again can't do so unless the law applies to both the public and private sectors or, oddly, if the law applies to state judges.

First the Court held that most gender distinctions were constitutional under a rational basis test, now most gender classifications are unconstitutional under something very close to strict scrutiny.

First the Court held that indigents charged with crimes under state law had no right to a government funded attorney, now there is such a right.

First the Court held that paper money was not legal tender for prior debts. A year and two new Justices later, paper money was held to be proper legal tender.

First the Court held that Congress could not regulate child labor under the commerce clause, now it can.

First the Court held the Second Amendment only applied to militia type weapons, now it applies to all arms in common use.

I could go on and on and on and on and on.

An institution that is not bound by text or precedent is not a court of law. Even worse, an institution that is not bound by text or precedent and is staffed by officials with life tenure and virtually unreviewable power is a terrible idea for a representative constitutional democracy. No other political institution in the history of the free world exercises authority the way our Supreme Court does. Far from being exceptional, such an institution poses serious dangers to self-government and the rule of law. It is well-past time we take serious measures to reduce that threat. How to do so is a subject for a different day.