My post yesterday, which took issue with what I see as disturbingly political criticism of the US Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization has attracted a number of responses, and it might be worth offering a quick rebuttal to the negative ones. As with yesterday’s post, the aim is not to dunk on individuals, but to address what I see as trends.
Response #1: But there are American professors, to say nothing of the dissenting judges in Dobbs, who have criticized the decision!
Sure. And insofar as their criticism is based on constitutional argument, that’s great. But that doesn’t absolve the people who choose to criticise based on political rather than legal claims.
Response #2: Dobbs breaks the rules of stare decisis!
If most criticism of Dobbs by Canadian and other lawyers, law professors, and organizations were actually focused on its treatment of precedent, I would not have written yesterday’s post. But it just doesn’t. I have seen professors share cartoons of majority judges as Taliban.
I would also note that there is, at the very least, a danger of inconsistency when people put too much of an emphasis on arguments from precedent. To be sure, arguments about inconsistency or even hypocrisy aren’t as interesting as people sometimes think, because they don’t answer the question of when the inconsistent or hypocritical person is actually right. But from the standpoint of personal integrity the issue is worth keeping in mind. And so, how many of those Canadian readers who defend the US Supreme Court’s previous abortion decisions on this basis were as critical of the Supreme Court’s of Canada reversal of precedent on, say, assisted suicide as they are of Dobbs? How many would have been as critical if the 2016 election had gone just that little bit differently and a left-leaning US Supreme Court had reversed Citizens United v Federal Election Commission, 558 US 310 (2010)?
Speaking of electoral outcomes and judicial appointments:
Response #3: The Dobbs majority judges were appointed by politicians who wanted to secure just this result!
So they were. But so what? A judicial decision stands or falls on its legal correctness. If it is correct, it doesn’t matter why the judge who made it was appointed. Ditto if it is wrong, of course. The issue of inconsistency or double standards is really worth thinking about here. The Justices appointed by Franklin Roosevelt were meant to uphold the New Deal policies, and did so. Earl Warren was a former politician, appointed by Dwight Eisenhower for crassly political reasons, so far as I understand. Are the decisions of the New Deal and Warren courts illegitimate for that reason alone? Nobody thinks that. Some were right, and some were wrong, and to say which were which we need to make a legal argument. So it is with Dobbs.
It’s also worth pointing out that the judges who dissented in Dobbs were also appointed with their views on this issue top of mind, and that their votes not only on this point but on almost every other are more closely aligned than those of their right-leaning colleagues. Yet somehow their votes are not dismissed as hackery for that reason.
And, before Canadians get self-righteous about just how political American judicial appointments are, they should recall that appointments to the Supreme Court are no less political, if perhaps less transparently political, here. So far as I’m concerned, that’s fine. If you take a different view, that’s fine too. But if you only proclaim this view in response to a decision you particularly dislike, I won’t take you too seriously.
And this brings me to
Response #4: But Dobbs is just different because it’s too important!
Response #5: All constitutional decisions about rights are political anyway!
Thanks for making my point. You think that sometimes (#4), or indeed always (#5), constitutional adjudication is a political, not a legal, endeavour. This is a plausible view, but it is inconsistent with accusing the Dobbs majority of hackery ― they merely take the different side of a contentious political issue. And you should be advocating for the abolition of judicial review, à la Jeremy Waldron, because there’s no justification for having political decisions made by a small committee of unelected lawyers. As I pointed out yesterday, Dobbs is actually a step in the right direction from that perspective. If people were to take the Waldronian position openly, I’d debate them on the merits and be content. But when they insist on having judicial review of legislation, but only provided it goes just the way they like, I am upset and alarmed.