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You remember Marbury v. Madison, don\u2019t you?\u00a0 Whether you learned about it in your government class or your history class, you learned that this was the foundational Supreme Court case in which the court established the principle that the job of the Supreme Court is to interpret the Constitution, and, in particular, to determine when a particular act of Congress violates the Constitution, either some aspect of the original text of the Constitution setting out the structure of the government or the Bill of Rights and subsequent amendments.<\/p>\n
Hence, in the recent batch of Court decisions<\/a>, the Court decided that forcing a public employee to pay fees to a union violated the First Amendment because those mandated fees were a form of compelled speech; the Court determined that \u201cwarrantless seizure and search of historical cell-phone records, which shows the location and movements of a cell-phone user over a period of more than four months\u201d violated the Fourth Amendment; decided that a California law requiring crisis pregnancy centers to post information on the availability of free Medicaid abortions violated the First Amendment; and determined that the Trump administration\u2019s \u201corder barring most foreign travelers from five Mideast nations with mostly Muslim populations\u201d was within the administration\u2019s powers as defined by the Constitution.\u00a0 \u00a0The Court also made decisions determining whether certain state actions violated federal laws, for instance, Ohio\u2019s process for removing inactive, apparently-moved voters from its voter registration rolls.<\/p>\n But Roe v. Wade and Obergefell v. Hodges, in which the Court declared that rights to abortion and to same-sex marriage, respectively, are protected by the Constitution, are of an entirely different character.\u00a0 Here\u2019s the rationale for the former<\/a>:<\/p>\n Roe . . . was based on the right of privacy. As Roe itself acknowledged, however, \u201c[t]he Constitution does not explicitly mention any right of privacy.\u201d Nevertheless, in a line of decisions going back to the late nineteenth century, \u201cthe Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.\u201d This right of privacy, \u201cfounded in the Fourteenth Amendment\u2019s concept of personal liberty,\u201d the Court in Roe held, \u201cis broad enough to encompass a woman\u2019s decision whether or not to terminate her pregnancy.\u201d<\/p><\/blockquote>\n The reasoning behind Obergefell is even more tortured, drawing on Equal Protection and Due Process clauses<\/a>\u00a0and, when I read it at the time<\/a>, really gave me the feeling that Kennedy was working backwards from his preferred result, finding same-sex marriage to be protected by the Constitution, to finding proof-texts in the Constitution and precedent cases.\u00a0 Consider his closing paragraph<\/a>:<\/p>\n No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization\u2019s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right<\/p><\/blockquote>\n Which is why I\u2019m inclined to think that what we\u2019re really seeing, both in terms of the justices making these decisions, and the (portion of) the public responding favorably to those decisions, and now seeing them as nothing other than the recognition of inalienable human rights, is an entirely different way of viewing the Supreme Court<\/em>.\u00a0 The Court\u2019s job is not something as old-fashioned and stuffy as interpreting a document written over 200 years ago, neither strictly nor trying to take into account 21st century norms and expectations.\u00a0 Instead, they believe, the Court\u2019s job is to make decisions based on universal norms of justice and fairness, whether or not the Founding Fathers wrote them into the Constitution or an amendment to the effect had been passed in the meantime.\u00a0\u00a0<\/em>It\u2019s a new Marbury v. Madison, taken together, a declaration that the Court makes its decisions based on its interpretation of universal principles rather than Constitutional text.<\/p>\n Unions are important, so nothing should stand in their way.<\/p>\n At the same time, Corporate money is bad, so the government should stand in its way.<\/p>\n Gerrymandering is unfair, so it must be stopped regardless of whether the Constitution has anything to say about it or whether, according to definitions of \u201cstanding,\u201d anyone is in a position to object.<\/p>\n The entire structure of the election system, in which districts are apportioned in ways that concentrations of a given party in urban areas \u201cnaturally\u201d disadvantage them, and, for that matter, small states have the same representation in the Senate as large states, is unjust.<\/p>\n etc.<\/p>\n And, relevant for the present case of Justice Kennedy\u2019s pending departure and the appointment of a new justice to replace him, is the right to abortion a Supreme Court precedent, vulnerable to being overturned if a new Court finds that its predecessor exceeded its authority in defining such a right, when such legislation would ordinarily be handled at the state level, or was it the recognition of a fundamental human right which cannot be removed without perpetrating a monumental injustice on women?<\/p>\n Of course, Roe\u2019s supporters are not willing to come out and say that they believe that the Supreme Court\u2019s role is far more expansive than deciding whether laws follow the U.S. Constitution.\u00a0 They talk about \u201cequal protection\u201d instead (because, the rationale goes<\/a>, women need abortion in order to attain full equality with men), but the hysteria we\u2019re now witnessing with respect to Trump\u2019s potential nominees, and demands that the Democrats in some way force a delay in the appointment process until they are again able to control it, certainly seems to me to come out of an unspoken greatly expanded role of the Court that only makes sense if you view it as a complete shift in function.<\/p>\n This is no longer a matter of bemoaning or celebrating whether the next justice is conservative or liberal, but a matter of two completely different visions for what the Court is about.\u00a0 To be sure, it looks like, what with Trump, the traditionalist version has the upper hand, for now at least.\u00a0 But whether the expansive vision even truly protects human rights isn\u2019t itself obvious, in the long run, considering that many European courts (and that of Canada) feel that their mission to protect some universal rights (e.g., to a notion of \u201chuman dignity\u201d) requires them to curtail other rights (e.g., when individual speech is deemed to violate the \u201chuman dignity\u201d of a person or a religious or social group).<\/p>\n So, hey, at the end of this rambling post, Happy Independence Day!<\/p>\n