Who’s Afraid of the Rule of Law?

Since the US Supreme Court released its decision in Dobbs v Jackson Women’s Health Organization, which overruled precedents finding a right to abortion in the US Constitution, there has been a great deal of public anguish and anger, not only in the United States but elsewhere too. In this post, I want to say something about non-American, and especially Canadian, responses. I won’t “bring receipts” ― that is, I won’t be linking to tweets, articles, etc. Partly, that’s because there are too many for any sort of representative survey. But mostly, because I will be very critical and don’t mean to target anyone in particular. The reason for writing this post is that I think I’m seeing broad and disturbing trends, not to dunk on individuals. If you think I’m describing things that aren’t there, well, I hope you’re right. But I doubt you are.

Let me note that this criticism does not mean that I am convinced Dobbs was correctly decided. I do not know enough about the original meaning of the 14th Amendment to the US Constitution to say whether it was. And to a large extent, this will be my point: one has to know the law before saying that judicial decision was wrong, let alone implying that it was political or indeed corrupt, as many have done. And the non-American critics of Dobbs (many American ones too, to be sure) don’t know enough and seemingly don’t care. I can understand ― though by no means approve of ― this when the people involved are politicians or other non-lawyers. But it distresses me when the same comments are made or shared by lawyers, professors, and bar associations.

Before I get to why that matters, a quick word on a genre of reaction to Dobbs that has, I think, been especially common in the UK. The decision, we are told, shows how bad it is to have the courts deciding matters of great social concern; or indeed it proves that judicial review of legislation is a misbegotten arrangement. Respectfully, this makes no sense. Dobbs holds that there is no constitutional right to an abortion. This means that the legality of abortion will, for the foreseeable future, be decided by democratically elected legislatures, probably at the State level, though I take it that there have been noises about Congress intervening on one or the other side of the issue. (I don’t know enough to say whether that would be constitutional, but I have my doubts). And that’s exactly what the critics of judicial review and judicial power want ― legislators rather than courts settling rights issues. Dobbs gives them, on this issue, what they say they are after. It cannot logically prove that judicial review is bad ― if anything, it shows that judicial review can be sensitive to their concerns. (This blog’s readers will know, of course, these are concerns I mostly do not share.)

But the most common type of reaction to Dobbs holds that it is a manifestly wrong decision made by partisan hacks and/or (more likely “and”) misogynists, and one that shows that the US Supreme Court isn’t a real court and that it will, wittingly or not, destroy the rule of law. I think that, putting these claims in the best possible light, to the critics it is simply inconceivable that in this day and age the constitution of an enlightened state committed to the Rule of Law would not protect a woman’s right to choose an abortion. Hence, a judicial decision holding that the US Constitution does not protect this right is egregiously wrong and either bigoted or partisan or both.

But the premise is quite obviously misguided. Take Australia, which, like Canada before 1982, has (virtually) no national protections for individual rights. If somehow a case arguing that there is an implied right to an abortion similar to the implied freedom of political communication that Australian courts have in fact inferred from the Commonwealth Constitution made its way to the High Court, and the High Court rejected the claim, would the critics of Dobbs be saying that its judges are bigots and hacks? Perhaps they would, and this is a rather scary thought ― it would mean that to avoid being tarred as a bigot and hack a judge would need to be willing to quite clearly make things up. More likely, though, they would not. The idea that an existing constitution “in a free and democratic society”, to borrow the Canadian Charter‘s language, does not protect abortion rights is not unintelligible.

Ah, but Australia is different, they might say. It actually lacks a national bill of rights, and the United States obviously don’t. That’s true so far as it goes, but you might think that the response to that is a given bill of rights may or may not protect a given right, even an important and widely recognized one. The Charter, for instance, doesn’t protect property rights. Whether a given bill of rights protects a given right is a question of law, to be authoritatively answered by the courts responsible for applying that bill of rights and, not authoritatively but importantly, by anyone with a sufficient knowledge and understanding of the constitution in question.

A judicial decision holding that a given constitution doesn’t protect a given right, such as Dobbs, can result from two causes. (1) The court may be wrong. It may be just wrong in the way that courts staffed by human beings are sometimes wrong, or it may even be captured by hacks or bigots. Or (2), it may be the case that the constitution actually fails to protect the right in question. Then the constitution may then be defective; it may stand in urgent need of amendment, and be subject to criticism until that takes place. But, for its part, the court faithfully applying this constitution would be blameless.

The critics of Dobbs are convinced that it falls into category (1). But they make no argument to exclude the alternative (2). Such an argument would need to parse the relevant provisions of the US Constitution in accordance with some plausible interpretive methodology. And not only do the Canadian and other non-American critics of Dobbs not articulate such an argument; they are ― and I say this with respect, if only because I am in the same position as they ― not qualified to do it. (That’s obviously not because you have to be American to be so qualified, but because you do need to study the relevant materials.) Without an argument for why Dobbs is wrong as a matter of US constitutional law, criticism of the US Supreme Court’s majority is at least as unfair and unjustified as any of, say, Stephen Harper’s attacks on the Supreme Court of Canada or the British government’s on the Supreme Court of the United Kingdom.

Why are we seeing such criticism? And why do I care, anyway? The answer to both question is the same: I strongly suspect that a great many people, including, most regrettably, lawyers (including those of the academic and journalistic varieties) are themselves taking an entirely political approach to law. It does not matter to them that they do not know enough US constitutional doctrine and history to articulate a plausible interpretation of the relevant provisions, or that many of them might not even know what these provisions are. At best, they think that a constitution is sufficiently interpreted by reference to purely moral considerations. At worst, that one need not bother with anything resembling interpretation and that only the rightness of the outcome matters to how we think about judicial decisions. But there is little daylight between these two views.

And this bothers me to no end, because I doubt that the people ― the lawyers ― who take such an approach to opining on the US constitution would take a different one to the constitutions of Canada or of the UK. If you think that the US Constitution is all about morality or the vibe of the thing, there is no reason why you wouldn’t think that about any other. To my mind, this, rather than the decision in Dobbs ― which may, for all I know, be quite wrong ― is tantamount to a rejection of the Rule of Law. I understand that people are upset about Dobbs. If some country commissioned me to write a constitution and to just do what I thought was right, I would include abortion rights, and property rights, and many other rights besides. But that doesn’t mean that any existing constitution protects my pet list of rights and liberties. If you cannot accept that any existing constitution might also not protect yours, you don’t believe in law. Sorry.