Kyle N. Shen is a graduate student in the department of government at The University of Texas at Austin. (1)
From the non-legal scholar’s perspective, the focus of the leaked draft opinion for Dobbs v. Jackson Women’s Health Organization are the immediate policy outcomes. (2) Whether pro-life or pro-choice, surely the first response is to wonder what the landscape of abortion practices will look like if Dobbs becomes the law of the land. Beyond these policy outcomes, the leak and the draft opinion also have significant implications for the institutional future of the Court and its legitimacy and influence in American politics. These implications invoke the concept of judicial statesmanship, where the Court not only exercises legal judgment, but also recognizes the responsibility it holds for the direction the country takes in response to its judgments. One key mechanism for statesmanship is persuasion, which allows the Court to contribute to the national conversation by moderating passions and by allowing the conversation to progress constructively. When fulfilling this role of statesmanship, the Court maximizes its ability to persuade passionate voices on both sides of a debate, taming passions and strengthening both its own legitimacy and the bonds of the union.
There are two institutional outcomes from the leaked opinion in Dobbs. The first result is the leak of an internal document, one not indicative of a final opinion or reasoning. Such a leak is surely damaging in its own right, a rare glimpse inside the sequestered process of legal decision-making. Some may see this broken norm as an increase in transparency. Yet adjudication is not legislation. It follows, one hopes, a process of careful reasoning and persuasion not amenable to a wholly transparent and public process. Vigorous debate calls for one to attempt new ideas and arguments before they are ready for public scrutiny.
However, this is not the only institutional result, nor perhaps the furthest reaching. Even broader than the leak is the question of the Court’s place in politics: how it shapes national policy and what role it plays in an evolving national conversation regarding the essentially contested questions shaping American society and politics. Both the leak and the draft opinion in Dobbs pose a risk of damaging the Court and exacerbating the dramatic polarization that has emerged in American politics. At critical moments such as these, it may behoove the Court to look to the past, for moments in the Court’s history when the justices rose above the politics of the moment and acted as statesmen, bridging the gap across factions rather than escalating tensions.
For students of law and politics, it is now trite to say that the Supreme Court of the United States is not merely a legal actor, but one embedded in politics. As the recent decades of studies on judicial behavior have shown, it is clear that policy preferences and strategic behavior play a role in decision-making, even among the august members of the Supreme Court. (3)
This is not to say that the Court is a purely legislative actor, nor a creature of everyday politics. The Court is not Congress, churning policy aspirations into law. Indeed, this observation of the Court as a political actor is among one of the richest observations made by scholars of the Court, leading to a fount of understanding that has enriched how we understand the role of the Court in our political system. Importantly, this role has moderated the excesses and abuses of state power at key moments in our history and provided the tools for liberation at others. (4)
To say that the Court is a political entity is to understand that the Court is a co-equal branch to the Executive and Legislative branch, the so-called “political branches,” yet one which is largely toothless. As Hamilton observed, the Court holds “no influence over either the sword or the purse…but merely judgment.” (5) The Court cannot directly enforce its own judgments, it cannot make laws, nor hold the power to organize budgets. Without trust in the quality of its reasoning and its impartiality, the Court holds little power. The Court’s power stems from its ability to persuade, a quintessentially political act.
Beyond its adjudication among the political branches, the Court also has a role to play in broader political discourse. As McCloskey wrote in his magisterial review of the Court’s history, later updated by Sanford Levinson, the Court is a participant in an ongoing conversation regarding the traditions, institutions, and norms setting forth the contours of American politics. At each key moment in American history, one can find the Court negotiating its place as a mediator of aspirations for change on the one hand, and the institutional boundaries of our political system on the other.
As a result, the Court holds a special seat of veneration in our system as a key participant in the collective and ongoing aspirational American project. This veneration is not one that exists in the ether. It emerged from two centuries of successful negotiation between the dual impulses for change and institutional continuity. Only through this ongoing and careful negotiation did the Court claim its symbolic weight that it holds today, (6) as McCloskey writes, “half judicial tribunal and half political preceptor, sensitive but not subservient to popular expectations, obliged by its tradition to share the duties of statesmanship.”
Thus, as a moderating influence on the political branches and as a participant in a greater national conversation regarding the trajectory of the American project, the Court cannot be understood only as a legal actor. It is essentially, unavoidably, political. And with that role come the duties of statesmanship. (7)
Noted examples of statesmanship see leaders setting aside personal preference and political gain to serve the interests of their nation. In American history, moments of statesmanship include Washington relinquishing office, Lincoln during the great fissure of the Civil War, and Franklin Delano Roosevelt setting aside personal health to lead the country through economic crisis and war. The leadership exhibited at these critical junctures altered the trajectory of American history, not only saving the nation but also guiding it on a path for greater and lasting prosperity.
Judges too may exhibit statesmanship, leading the country and guiding the national conversation at crucial moments. “The statesmanlike judge,” Jacobsohn writes, “will adapt the Constitution to changing social realities without altering the meaning of the document.” (8) Judicial statesmanship calls on judges to attend to the competing goals of institutional fidelity and public legitimation. (9) The judicial statesman (or stateswoman) holds a dual responsibility, not only to the Constitution as they read the text, but also a responsibility to the polity beyond their own vision of society.
This concept has two implications relevant to the current moment, first for how the Court decides and second for the Court’s influence in American politics. First, the locus of the Court in American politics means that it has a duty not only to individual preferences, even if these preferences are informed by decades of learned study and practice. The Court also must be cognizant of the place it holds among American institutions, the tenuous nature of this locus, and the importance of wielding persuasion. Lincoln, speaking at another crucial moment of polarization, appealed to “the better angels of our nature” in hopes of overcoming the passions which had shaken apart the national unity. (10) The judicial statesman has a duty to do the same, to set aside individual passions and call forth the better angels of the American public.
Dobbs argues it is doing just that. “Roe was on a collision course with the Constitution from the day it was decided…” the draft opinion states, “the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” The decision appeals to democratic legitimacy and to the personhood of the fetus, with all the rights and interests involved in this perspective. For anyone adopting this perspective, that of the personhood of the fetus, this is the better angel, overcoming the mistaken passions of the Court in Roe and Casey.
From such a perspective, Dobbs increases democratic legitimacy by giving the decision on the right to abortion back to the people. However, the Court does not decide in a vacuum, set distinct from political context, and both the reasoning and the outcome in Dobbs are likely to see an escalation of tensions and polarization after the opinion. As written, Dobbs returns the debate to politics without providing tools to settle the question and without guidance for how the national conversation on the matter may proceed more fruitfully. Democratic legitimacy without guidance will lead to further escalation in polarization and political conflict.
The answer to this comment may be that it is not the Court’s job to persuade skeptics. After all, as Justice Charles Evans Hughes once stated apocryphally, “the Constitution is what the judges say it is.” Yet this is not a satisfactory response, particularly on the questions which are most likely to find fundamental spiritual, moral, and epistemological divisions across groups of reasonable people. When both sides are convinced of the righteousness of their side, adopting one side’s views with little answer to the other will not resolve the conflict. And to its credit, Dobbs has an answer to this. The opinion makes clear that it foresees a conflict to be resolved in the political arena of elections and legislation.
To this rebuttal, judicial statesmanship posits its second implication for American politics. (11) As the vicissitudes of the public shift, the Court exerts a moderating influence on the trajectory of American politics. Where protest, elections, and legislation are the arena for passions, the judicial statesman reduces factionalism and conflict. This is the source of the Court’s enduring legitimacy, that nearly all groups in American society can look to the Court as a potential venue for a hearing and possible source of redress for grievances. The Court is at its best when it reduces passions whilst allowing the debate to continue. Where it cannot reduce passions, it risks not only fanning the flames of conflict, but also threatens trust in its fairness and judgment.
Consider the great examples of judicial statesmanship in the Court’s history, beginning with Marbury v Madison. (12) Marbury is notable as a case of statesmanship not only for establishing judicial review, but also for Marshall’s negotiation of the political context of the case, as well as the power that the Court gained as a result of the case. Famously, the Court sided with William Marbury’s claim that he was entitled to his commission and was afforded a remedy for the denial of his commission by the administration subsequent to that which had granted it. On the final question of issuing the writ of mandamus, the Court could have brought itself into conflict with the Jefferson administration, just when the Presidency had exchanged control across political parties for the first time in American history.
Instead, the Court deftly avoided the issue, interpreting the Judiciary Act of 1789 as unconstitutionally expanding the Court’s original jurisdiction as set forth under Article III. Despite siding with Marbury’s claim for a remedy, the Marbury opinion held that the Court had no jurisdiction to issue the writ. In doing so, the Court both avoided placing itself in conflict with the Administration whilst also assuming a power to shape Constitutional governance. The Court’s pragmatic decision avoided and opened the door for its influential future role in reviewing the political branches, a power unprecedented at the time but now seen as a vital component of good governance throughout the world.
Similarly, the Marshall Court also exercised judicial statesmanship in McCulloch v. Maryland. (13) This case saw the Court weigh into the question of federal and state powers, one of the essential debates throughout the history of the US Constitutional tradition. In that case the statesmanship of the Court manifested in a moment of textual analysis and pragmatism, employing the necessary and proper clause to sustain the federal government’s power to govern economic behavior across the union, rather than allowing the states to tax and regulate the Bank of the United States. The decision provided the federal government the tools necessary to govern while remaining grounded in the text of the Constitution. Had Marshall not exercised this pragmatic statesmanship, the great opinion in McCulloch would have seen the states override federal powers at a crucial moment in our then-nascent history of federalism.
On each occasion of judicial statesmanship, the Court looks first to the letter of the law, writing an opinion that remains within the interpretive confines of the text, but these judgments also are cognizant of the Court’s role as a national leader and the consequences if it refrains from doing so. To give regard to judicial statesmanship is not to bow to public opinion, but rather to understand that the Court plays a role not only in interpreting the law, but also in governing the country. The power it wields will deeply impact the trajectory of institutions, policies, and lives.
Indeed, the Dobbs opinion is cognizant of the possible public outcry that may result if it becomes the final judgment. And it rightly observes that the Court cannot follow public opinion. (14) Where the Dobbs opinion falters in this portion of its analysis, however, is to mistake rhetorical power as strength of opinion. The Court’s strength of opinion comes from its ability to persuade, to provide standards adjudicating between reasonable alternatives, and to convince skeptics of its conclusions.
The strength of opinion that stems from persuasion invigorates the Court’s power. While persuasion does not settle the question, it moderates passions and directs the national conversation in more fruitful directions. Every decision inevitably sees the Court take a side, but the way it does so is essential. As Dobbs frames the question of abortion, this case involves two competing views of rights and why we should favor one group’s rights over the other. As the opinion recognizes, the competition between these concerns is what makes the issue of abortion so intractable, and what distinguishes it from other fundamental rights jurisprudence. (15) Yet, while Dobbs takes time to discredit the reasoning in Roe and Casey, it provides few tools for understanding how to adjudicate between the two rights.
The opinion mentions possible policy response, (16) but does not take on the more challenging question: how one ought to decide between the competing concerns for the potential life of the fetus and the rights of women. If both are fundamental principles, what decides which ought to be elevated over the other? If Roe is wrong, then why must Dobbs be right? Reasoning in the hard cases must convince the skeptic, not only embrace the converted. The reasoning in Dobbs, which disregards the arguments in Roe and by subsequent proponents of a woman’s right to choose, does not provide an answer to how one ought to value one right over another, merely that one ought to accept the decision. The Court need not resolve the debate (Roe and Casey surely did not) but judicial statesmanship asks the Court to contribute to the debate with new ideas and arguments. Through the use of persuasion, the Court can embrace its role in governance and as a leader in national conversations.
One may respond that the preceding discussion applies also to Roe, as an exercise of “raw judicial power” (17) and not persuasion. Yet precedent happens in sequence, and if it becomes the final opinion, Dobbs will not return the political debate surrounding abortion to the pre-Roe era. Institutions and political opinion have changed in the intervening fifty years. Positioning itself as a cure to Roe, Dobbs neglects the effect that the Court has on today’s politics.
The discussion of broader reliance interests emerging from the re-organization of social and economic life described in Casey (18) is instructive. While Dobbs looks unfavorably on this broader reading of reliance interests as a doctrinal matter, (19) the doctrinal analysis is only the beginning of the discussion, which also includes responsibilities arising from the Court’s role in government and from its influential voice in the ongoing national conversation on rights and political development. This reasoning is especially important for cases involving competing fundamental rights, where both sides are convinced of the righteousness of their own side, and the unreasonableness of the other.
On such occasions calling for judicial statesmanship, the Court has an opportunity to engage in important debates about the future of the American polity. When it succeeds, as in Marbury and McCulloch, not only does the Court strengthen its own legitimacy, but also it becomes a steward to American institutions and to the American people. The statesman-like Court allows the debate to continue beyond its halls, but also promotes trust in American institutions and prevents opposing sides from setting out on divergent trajectories.
Judicial statesmanship asks the Court to balance the competing impulses of institutional fidelity and social change while considering the effect that its judgment will have on American politics and society. Clinging too much to one or the other impulse has consequences for the Court’s power, diminishing its hallowed position in American politics. Even if the Dobbs draft opinion is correct in calling Roe an exercise of “raw judicial power,” using the same raw judicial power does little to address the institutional harm that followed from that judgment. Particularly for such essential and polarizing questions such as abortion, judicial statesmanship requires consideration for issues of governance and discourse in American politics beyond the legal and moral principles involved in a singular case. The Court does not have the luxury of assuming that it operates in a legal vacuum, separated from the strategic contexts of politics and from the social and political consequences of its judgments.
Footnotes:
(1) My gratitude to Charles Zug and Rohit Sudarshan for encouragement and comments that greatly improved my thinking and writing for this piece. All errors remain my own.
(2) To be sure, the experiences of individuals navigating this potential post-Roe world will be confusing, frustrating, and even painful. No matter one’s opinion on the decision, the implementation of policy after the ruling this summer (if this will be the final judgment) will surely be chaos. On this matter other sources and authors have had far more to say. Instead, this essay considers the broader consequences for the Court as an institution.
(3) See, e.g., Segal & Spaeth, The Supreme Court and the Attitudinal Model Revisited (2002); Lee Epstein, Jack Knight & Andrew D. Martin, The Supreme Court as a Strategic National Policymaker, 50 EMORY L.J. 583 (2001).
(4) Of course, the Court also has dark stains in its history, including upholding the enforcement of the fugitive slave clause (Prigg v Pennsylvania, 41 U.S. 539 (1842)), segregation (Plessy v. Ferguson, 163 U.S. 537 (1896)), valuing economic freedom over the welfare of working people (Lochner v New York, 198 U.S. 45 (1905)), eugenics and forced sterilization (Buck v. Bell, 274 U.S. 200 (1927)), and Japanese American internment (Korematsu v. U.S., 323 U.S. 214 (1944)).
(5) The Federalist No. 78 (Alexander Hamilton).
(6) Indeed, polls of American trust in institutions consistently show that the American public holds trust in the Court, even while trust in other institutions, such as Congress, continue to fall. Notably, however, trust in the Court also has declined from a twenty-year average of 68% trusting the Court to 54% in recent polls. Brenan, Americans’ Trust in Government Remains Low, Gallup (Sept. 30, 2021).
(7) McCloskey, The American Supreme Court (2010), 14.
(9) Siegel, The Virtue of Judicial Statesmanship, 86 Tex. L. Rev. 959 (2008).
(10) Lincoln, First Inaugural Address (March 4, 1861).
(12) Marbury v Madison, 1 Cranch 137 (1803).
(13) McCulloch v. Maryland, 17 U.S. 316 (1819).
(14) “Whatever influence the Court may have on public attitudes must stem from the strength of our opinion.” Dobbs v. Jackson Women’s Health Organization, No. 19–1392 (Leaked 1st Draft, Circulated Feb 10, 2022), 64.
(15) Dobbs, 32, 45.
(16) Dobbs, 33–34. The opinion mentions modern shifts in attitudes toward pregnancy outside of wedlock, the provision of medical insurance for those who are pregnant, and expansion of adoption services. But these are all answers to questions subsequent to the question of women’s rights.
(17) Dobbs, 50.
(18) “The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.” Planned Parenthood v. Casey, 504 U.S. 833, 837 (1993).
(19) Dobbs, 60–61.