I love reader letters. I thought this one from Clay Brett was excellent and worth sharing. Keep ‘‘em coming!
Been a reader for years, former attorney and now run a small upstream energy portfolio, mostly drilling JVs. Your HTOTD is a good lay summation of the heart of Roe in Dobbs but I would urge you to consider the broader institutional context of SCOTUS in 2022 when looking at this case and the voting rights and vaccine cases that will surely percolate to SCOTUS this year and next.
SCOTUS has always held a precarious position in American politics because its existence is essentially anti-democratic. Its members are appointed for life, which departs from democratic norms of accountability, and exercise the power of judicial review over laws otherwise validly enacted by representatives elected by the people which, by the way, is a power SCOTUS created for itself during the early days of our country. At some point, the justices have a basic fear that the public will defy their decisions - the Court relies on the Executive Branch to enforce the legal authority of its decisions - and the United States has experienced periods where public officials openly defied the Court, most notably when southern Governors refused to follow the Brown v. Board decisions requiring the integration of public schools. In that case, the National Guard showed up to force integration…but what if they hadn’t?
My point isn’t to take issue with the existence of SCOTUS, quite the opposite, it is to highlight the intense pressure on SCOTUS and specifically its conservative majority as it hears politically charged cases in the current feverish political climate. This pressure is applied by the same enormously powerful political, media, corporate and astroturf ground forces that have dominated public discourse through the past several years.
The stakes are the structure and existence of an independent SCOTUS first and a right to an abortion second. In substance, enough states and defiant private organizations will provide abortion access and defy state law that abortions will continue to be available in blue states, across state lines and in well-funded private “grey” clinics. There are huge, well-funded private interests that will ensure that is the case.
As to the greater question, whether the Court will remain as an independent body capable of limiting extra-constitutional and unconstitutional actions by other political units, the threat is court-packing because the number of justices of SCOTUS and their tenure is determined by federal statute. While not constitutionally protected, a 9 member SCOTUS with life tenure has been a pillar of institutional stability in American laws for two centuries. The Court faced a similar threat to its independence in the New Deal era, where a court-packing plan by FDR led a small government stalwart, Owen Roberts, to abruptly change his philosophy towards the Commerce Clause as a source of federal Congressional power, permitting a broad expansion of federal authority to regulate interactions between individuals and businesses. The alternative was the appointment of 4 new justices by FDR and an overwhelmingly Democratic Senate. The Court was saved (“the switch in time that saved nine”) at the expense of jurisprudential honesty. The specter of court-packing has returned quite aggressively, and will persist as a majoritarian hammer regardless of the vaccine mandate case outcomes.
Chief Justice Roberts has built his service on the Court on his acute sensitivity to the Court’s role in public life, paying heed to the risks of broad, sweeping rulings being perceived as legislation from the bench. His extraordinarily narrow holding in the Obamacare case, Sebelius, is the hallmark decision of his tenure both because of popular obsession over the legislation and the limited holding on which he based his deference to political bodies. There, as I may expect inDobbs, he refused to engage in generalized debate over the scope of the Commerce Clause (in that case, the four left-leaning justices argued that the Clause’s authority for Congress to regulate interstate commerce between States includes Congress’ authority to force individuals to participate in commerce (i.e., buy health insurance)) and Roberts joined the majority by a mere Concurring Opinion in characterizing the mandate as a tax - which concurrence was designed to have no precedential value, and thus, no expansion of either Court or Congressional power.
I would expect a similarly cantilevered approach to high profile cases so long as court-packing is a credible threat - so long as the barbarians remain at the gates.
Keep fighting the good fight.
Clay Brett