The Supreme Court and Immeasurable Interests

Among the more peculiar moves the Supreme Court has made in recent high profile decisions is its rejection of interests that, while real, are difficult to measure.  In Students for Fair Admissions v. President and Fellows of Harvard College, Harvard and UNC identified the educational benefits of diversity, including (among others) training future leaders, preparing graduates to adapt to an increasingly pluralistic society, and enhancing cross-racial understanding.  These may be "commendable goals," the Chief Justice wrote, but they were "not sufficiently coherent for purposes of strict scrutiny."  How, the Court asked, should courts "measure any of these goals"?  

Likewise, in Dobbs v. Jackson Women's Health Organization, the Court discounted women's reliance interests because they were too intangible.  In upholding the right to abortion, the Court in Planned Parenthood v. Casey had followed Roe v. Wade because "people [had] organized intimate relationships and made choices that define their views of themselves and their places in society . . . in reliance on the availability of abortion in the event that contraception should fail."  Justice Alito's Dobbs opinion was unwilling to credit this "novel and intangible form of reliance."  In the current Court's eyes, the kind of reliance endorsed by Casey "depends on an empirical question that is hard for anyone--and in particular, for a court--to assess, namely, the effect of the abortion right on society and in particular on the lives of women."  

In both Students for Fair Admissions and Dobbs, then, the Court seemed to say, "if we can't measure it, it doesn't count."  While admittedly each opinion offered this argument as one of many, these rhetorical moves reflected a remarkable disregard for the interests of the parties on one side of those cases.  That the Court discarded those interests so willingly as it overruled longstanding constitutional precedent is all the more striking.  (Students for Fair Admissions purported to follow Grutter v. Bollinger's framework, but the Court effectively, if not officially, overrules much of its affirmative action precedent, including Grutter.)  

The Court's refusals to credit parties' interests that cannot be empirically measured reflect an oddly court-centric view of the world.  "How," asked the Chief Justice in Students for Fair Admissions, "is a court to know whether leaders have been adequately 'train[ed]'; whether the exchange of ideas is 'robust'; or whether 'new knowledge' is being developed?"  Though the Court acknowledged that the respondents' interests were "plainly worthy," they were "inescapably imponderable."  Similarly, Dobbs does not credit women's reliance interests because courts are ill equipped "to assess" the "empirical question" of how precisely women rely on the right to abortion in ordering their lives.  Apparently, because the interests could not be precisely weighed and neatly packaged for judicial consumption, the Court could not credit them at all. 

The Court's approach here seems willfully blind to the fact that the world is messy, and some truths cannot be measured, at least not easily.  Almost everyone who teaches law (and, I would imagine, many other topics) agrees that diverse classrooms enrich class discussions and broadens students' perspectives.  Of course, diversity of all kinds--race, sex, class, sexual orientation, gender identity, religion, political, geographic, and more--offer such enrichment.  A racially diverse classroom is very likely to have different conversations about slavery, Reconstruction, Jim Crow, redlining, and, yes, affirmative action, than an all-white classroom.  By asking "[h]ow many fewer leaders Harvard would create without racial preferences," the Court is deliberately closing its eyes to the obvious fact that diversity does carry educational benefits, albeit benefits not easily susceptible to precise empirical measurement.  

Similarly, in the abortion context, does anyone really doubt that many women do "organize[] intimate relationships and ma[k]e choices that define their views of themselves and their places in society . . . in reliance on the availability of abortion in the event that contraception should fail"?  Studies have, in fact, shown that access to legal abortion helps advance economic freedom and financial security.  But even if those numbers may be contestable, we ought not blind ourselves to the larger point that some women's full participation in the economy and society depends on their control of their own reproductive systems. Just because that reliance can't be easily measured does not make it less real.  

Indeed, the Court in other contexts places great weight on interests that are important but difficult to weigh empirically.  In the religion context, this Court has gone to great lengths to protect religious interests--that is, interests that are also enormously important but virtually impossible to measure. Hence, the Court invalidated COVID health regulations that infringed on free exercise rights.  No one in those cases suggested that because the religious interests could not be empirically measured they did not matter. 

The Court's casual dismissal of women's interest in abortion access or universities' interests in affirmative action is perhaps even more troubling because it's not clear that these rhetorical moves were necessary to the Court's preferred outcomes.  When Dobbs pivoted to "history and tradition" to flesh out the meaning of the liberty component of the Due Process Clause of the Fourteenth Amendment, it steered around women's interests altogether.  (As Reva Siegel has argued, far from being value neutral, this focus on history and tradition focuses on laws at a time when women were deemed unfit to participate in the political process.)  Likewise, once Students for Fair Admissions announced that "[e]liminating racial discrimination means eliminating all of it," it's hard to see how any evidence the universities gathered would have persuaded the Court to uphold affirmative action practices.  Given these doctrinal approaches, the Court's refusal to credit the parties' interests in these cases seems gratuitous. 

While seemingly unnecessary, the Court's rhetorical moves here--its rejection of one side's interests because it believes those interests cannot be assessed empirically--illustrate a broader problem with today's Supreme Court: its refusal to give any weight to interests the conservative majority doesn't like.  I have written elsewhere about a judicial rhetoric of constitutional absolutism that disingenuously pretends that difficult cases are easy ones, in part by brushing aside the losing side's concerns.  That was true when I wrote that article in 2015, and it is far truer today.  The Court's apparent refusal in these cases to give any weight to the losing side's interests--to the value of diversity in education or to the importance of access to abortion in some people's lives--is symptomatic of a Court that pays almost no heed to the other side of the ledger.  (Among the six-Justice conservative majority, Justice Kavanaugh is often the only one who makes it a point to acknowledge the competing interests in a case.)

None of this is to say that there weren't plausible arguments in the majorities' favor in these cases.  Of course there were.  The point, rather, is that the current Court viewed the cases as so one-sided that it could brush away the losing party's interests without engaging with them seriously.  

Earlier Courts were more willing to recognize legitimate interests on both sides of controversial cases.  Whether right or wrong, Roe and Casey were attempts at compromise, preserving the right to abortion early in pregnancy while permitting states to adopt regulations or even prohibitions later in pregnancy.  Likewise, Bakke and Grutter made clear that plenty of affirmative action programs would not pass constitutional muster.  Critics on both sides objected to the balance those cases struck, but, for better or worse, those decisions tried to do justice to both sides of difficult issues. 

Today's Court, though, sees the world in black and white; it sees no gray.  That absolutist view of the world is contributing to a serious erosion in public confidence in the Court.  Justice Alito and others may cry foul when critics question the Court's legitimacy, but these criticisms are very much of the Justices' own making. When the Court not only overrules important constitutional precedents but casually dismisses the importance of the parties' interests underlying the earlier decisions, it invites serious criticism.