A Supreme Liar

As Vox's Ian Millhiser explains, the US Supreme Court is lying to America when it comes to the topic of judicial restraint. Nobody's been a more egregious liar about this than Justice Amy Coney Barrett, as she lied at length during a speech at Notre Dame University this week.

Barrett was at Notre Dame to deliver the keynote address at a symposium on “The Nature of the Federal Equity Power,” a topic that, as Barrett wryly acknowledged in her speech, “sounds like one that only a law professor could love.”

As Barrett explains, “equity” is a legal concept that arose in England as a way of mitigating harsh outcomes that were required by inflexible legal rules. The English system even had a special court, the Court of Chancery, which was a “place for litigants to come” when ordinary legal rules were “too harsh.”

This dual court system, Barrett explained, highlighted a “tension between the demands of the law, which constrains, and the demands of fairness, which is flexible.” Ordinary judges were more akin to mechanical dispensers of legal rules, while judges applying equitable principles had more leeway to reach results they deem fair.

If that tension sounds familiar, Barrett told an audience of mostly law students that it should. “It’s the same dispute that we see in a context that’s probably more familiar to you — the context of constitutional interpretation.”

According to Barrett, there are two opposing sides in this dispute. “Formalists,” such as herself and the late Justice Antonin Scalia, who “favor methods of constitutional interpretation that demand close adherence to the constitutional text, and to history and tradition.” Meanwhile, Barrett claims that “pragmatists” favor a more flexible approach that is less concerned with applying consistent legal rules, and more concerned about the harsh results that can arise from a too-rigid adherence to legal texts.

Most of what Barrett said at Notre Dame is uncontroversial. She fairly summarizes the development of English courts of equity. She is also correct that modern-day judges frequently divide into what she describes as the formalist and pragmatic camps.

But Barrett is wrong to label herself a formalist. In her brief tenure on the Supreme Court, she’s shown extraordinary willingness to join other Republican-appointed justices in opinions that bend the rules of the law in order to achieve results they deem to be just.

Flexibility — what Barrett labels judicial “pragmatism” — is the hallmark of the Roberts Court, and especially the new, proudly conservative majority that Barrett’s confirmation brought into being. The Court’s most high-profile decisions will sometimes ignore the text of the Constitution, or of a major statute, altogether. And the Court frequently applies harsh legal rules to disfavored litigants that it would never apply to political conservatives.

As Scalia once explained, the formalistic demand that legal rules must apply universally to all similarly situated litigants is one of the most important constraints on judicial discretion. “When, in writing for the majority of the Court, I adopt a general rule,” the late justice wrote in 1989, “I not only constrain lower courts, I constrain myself as well.” Because “if the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences.”

And yet, the current Court doesn’t seem to just indulge such a preference, it revels in it. The most blatant example is the 5-4 decision in Whole Woman’s Health v. Jackson (2021), which Barrett joined in full.

Jackson involved Texas’s anti-abortion law SB 8, a law that effectively bans all abortions after six weeks, in violation of the fetal viability standard established in Planned Parenthood v. Casey (1992). And SB 8 was, in Justice Sonia Sotomayor’s words, designed to “evade judicial scrutiny.”

Ordinarily, when someone wishes to challenge an unconstitutional state law in federal court, they are not allowed to sue the state directly. Rather, such a plaintiff must sue the state official charged with enforcing that unconstitutional law. But Texas tried to design SB 8 so that no state official would be empowered to enforce its anti-abortion provisions — and thus no one could be sued to block the law.

SB 8 relies on a bounty hunter system. Under SB 8, “any person” except for an employee of the state of Texas may bring a lawsuit against any abortion provider accused of performing an abortion after the sixth week of pregnancy. If an abortion provider loses such a suit, they must pay the plaintiff a bounty of at least $10,000 — and there is no upper limit on this bounty.

SB 8, in other words, terrorizes abortion providers by potentially subjecting them to hundreds or even thousands of lawsuits if they are suspected of violating SB 8’s terms.

As Chief Justice John Roberts explains in a dissenting opinion in Jackson, Texas did not actually succeed in writing a law that is not enforced by state officials — and is therefore immune from federal judicial review. Because “the mere threat of even unsuccessful suits brought under SB 8 chills constitutionally protected conduct,” Roberts wrote, “court clerks who issue citations and docket SB 8 cases are unavoidably enlisted in the scheme to enforce SB 8’s unconstitutional provisions, and thus are sufficiently ‘connect[ed]’ to such enforcement to be proper defendants.”

But the five most conservative justices, including Barrett, all backed Texas’s play. Barrett joined an opinion by Gorsuch that effectively immunized SB 8 from any federal lawsuit challenging Texas’s bounty hunter system. (Technically, Gorsuch’s opinion allowed suits to move forward against state health officials who play a minor role in enforcing the law, but their role in doing so is so small than a hypothetical court order against these officials would be basically useless.)

The implications of this decision are staggering. As Roberts writes in dissent, quoting from an 1809 Supreme Court opinion, “if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” Jackson provides every state with a roadmap that it can use to neutralize virtually any constitutional right.

 

Conservatives have been complaining about "activists judges" for all my adult life and then some. Now they are in position after decades to rewrite America's laws from the top down to mean whatever they say it means, and we remain at their whim.