The liberal justices correctly portend that the Supreme Court’s retrenchment on women’s reproductive rights will not pass the smell test of political neutrality. Those justices were attuned to the recent campaign by several conservative justices to protest the high court’s credibility and their own legitimacy as independent jurists.
In the wake of the court’s suspect use of the shadow docket to keep vigilantism in place, a mechanism to chill the exercise of existing constitutional rights, and as oral argument in Dobbs v. Jackson Women’s Health Organization approached, Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett armed themselves with the talking points. They set out to “convince” the public that, as the final arbiters of the Constitution and its meaning, they simply apply their independent constitutional jurisprudence to cases that come before the court, they are not ends-oriented and, with lifetime appointments, they are not buffeted by political winds. They end up wherever the facts and law take them. Just ask them. In the words of Justice Amy Coney Berrett who stood at a podium next to Mitch McConnell in a building named after him on the University of Louisville campus: “my goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”
If the liberal justices believe the credibility and the public’s perception of the high court as politically neutral are threatened by the conservative majority violating longstanding, jurisprudential principles of stare decisis to vacate Roe – a rank, ends-oriented, activist, and seemingly inevitable political move – well, those ships have already sunk.
The Supreme Court owes its membership to partisan politics. While I’m no student of history, I am familiar with some of the partisanship surrounding the more recent composition of the Supreme Court. I’ve written about how Trump, McConnell, and sitting justices politicized and delegitimized the judiciary. See link, below. I won’t repeat that here.
Adam Liptak noted: “For decades, conservatives have argued that Roe amounted to judicial activism, announcing a right not found in the Constitution and overriding the political process to achieve an outcome that politicians would not. Now, after nearly half a century in which that right has been woven into the societal fabric, the argument may have come full circle with many liberals saying that a decision by the court to eliminate the right to abortion would amount to flagrant political activism.” As professor Melissa Murray suggests, “the court has been weaponized for political purposes.”
Adam Liptak, Critical Moment for Roe, and the Supreme Court’s Legitimacy, New York Times.
I will opine that the debate over adding a slew of liberal justices in response to McConnell’s extra-constitutional leadership in the senate reaffirms that the public sees the high court as every bit the political institution as its sister branches.
But let’s move to what the Supreme Court is about to do as it further delegitimizes itself.
La Femme Qui Pleure Two-and-a Half, Oil on Masonite, 20" x 48", 1993, Richard J Van Wagoner, Courtesy of Helen Bero-Van Wagoner and Richard A. Van Wagoner* (previously posted in https://richardvanwagoner.medium.com/1-march-2017-35f8f4cd9621 and http://lastamendment.com/2017/02/26/last-amendment-vii-2/ *PENCE: "'CHOICE' IS NOW LIMITED TO VICTIMS OF LEGITIMATE RAPE")
Is Liberty an Empty Vessel?
The Fifth Amendment was added to the U.S. Constitution in 1791. It provides that “no person . . . shall be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment was ratified in 1868. This addition to the Constitution contains “due process” language identical to that contained in the Fifth Amendment but extends the protection against infringement beyond the federal government to the states. I have looked but haven’t been able to locate the definition of liberty in the four corners of the amendment or the Constitution itself. Is it a body of so-called “god given” rights in the individual that exist independent of man-made institutions?
Over time, a jurisprudential debate ensued on the high court concerning the meaning of “due process” in this context. Some justices, including the likes of Clarence Thomas, believe the guarantee is simply procedural and “not a secret repository of substantive guarantees against unfairness.” Other justices advanced a doctrine known as substantive due process that defends rights in the individual that are not explicitly enumerated in the Constitution but are implicit in the body of the Constitution itself, and in undefined terms such as liberty and privileges and immunities. In the last century up to recent decisions including the right to same-sex marriage, the doctrine of substantive due process achieved and maintained majority status on the Supreme Court. As noted above, those rights are now “woven into the societal fabric.”
Such rights under the Constitution are meant to exist in the individual and are not subject to the contrary will of the majority, except on the edges. No rights under the Constitution are absolute, however, particularly on the extremes and where the exercise of one person’s right infringes on that of another. Judicial nominees’ anticipated line-drawing between and among constitutional rights is, largely, where the partisan battles are fought.
I have always thought of liberty as individual autonomy constrained only by competing constitutional interests. Yet, individual autonomy is one of several conceptualizations of “liberty.” In an ordered society, that notion and other meanings people ascribe to the term, e.g., natural rights, small-scale and local self-governance, economic individualism, and broadscale social justice, often joust between and among themselves. Many people who simultaneously purport to hold multiple visions of liberty, when carried to their logical conclusions, find themselves trapped in internal inconsistency. Given what I believe is the most significant retrenchment of individual autonomy in my lifetime, however, that is my primary focus here.
Another complexity to deriving a consistent meaning of liberty is whether one views the Constitution as static or a living document. The Founders, ultimately, created a charter for an unknown future and used terms the Constitution did not itself define. Are we stuck with 1791 or 1868 definitions? Likewise, the Fourteenth Amendment used undefined terms, e.g., liberty whose meaning the Constitution, in my view, not only invites but demands revisiting as the world changes. We should not be bound by meanings ascribed in the Industrial Revolution and the beginning of Reconstruction.
During a speech at Georgetown University former Justice William Brennan gave his defense of the Constitution as a living document:
“The Constitution on its face is . . . a blueprint for government. . . . When one reflects upon the text’s preoccupation with the scope of government as well as its shape, however, one comes to understand that what this text is about is the relationship of the individual and the state. The text marks the metes and bounds of official authority and individual autonomy. When one studies the boundary . . . one gets a sense of the vision of the individual embodied in the Constitution . . . a sparkling vision of the supremacy of the human dignity of every individual.”
Likewise, in his majority opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, in which the court reaffirmed Roe v. Wade, Justice Anthony Justice wrote:
“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Galileo’s Recantation, Watercolor, 42" x 51", Richard J Van Wagoner, 1995, Courtesy of Angela Moore**
In 2015, Justice Kennedy, writing the majority opinion in the same-sex marriage case, gave one of the best explanations of the Constitution as a living document in its application of the doctrine of substantive due process:
“Under the Due Process Clause of the Fourteenth Amendment, no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. . . . In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. . . . The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, ‘has not been reduced to any formula.’ . . . Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. . . . That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. . . . That method respects our history and learns from it without allowing the past alone to rule the present.
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”
As new and novel concepts emerge, society shifts and advances, science accelerates, and knowledge increases, the Supreme Court addresses what liberty under substantive due process means – the kind government must leave alone absent good reason – through a series of cases that often build from one to the next over time. The Supreme Court is on the verge of abandoning or retreating from the doctrine that solidifies individual rights to make “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs,” rights that have “been woven into the societal fabric.” Which states will outlaw the use of contraception, interracial marriages, and certain sexual activity between consenting adults? We already know about reproductive rights and same-sex marriage.
Examples of the rights include:
• Liberty includes the rights found in the Privileges and Immunities Clause in the Constitution. That clause provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Such rights include the freedom to travel, even though not expressly identified in the Constitution
• A zone of privacy shrouds married couples’ decisions whether to use contraception, even though the Constitution doesn’t mention birth control; such decisions are personal and not subject to government regulation
• Laws prohibiting interracial marriages have no legitimate purpose “independent of invidious racial discrimination” and violate notions of individual liberty and equal protection, even though the Constitution doesn’t mention marriage between people of different races or ethnicities. Chief Justice Warren wrote:
“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. . . . To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the State.”
• Consistent with the decision about contraception, privacy includes the right to make personal decisions about reproductive health including abortion to viability, even though not expressly mentioned in the Constitution
• Anti-sodomy laws “further no legitimate state interest which [could] justify its intrusion into the person and private life of the individual,” and therefore violated the Fourteenth Amendment prohibition against government deprivation of liberty without due process of law, even though sexual activity between or among consenting adults is not mentioned in the Constitution
• “Perhaps the oldest of the fundamental liberty interests recognized by th[e] Court” is the right of parents to direct the custody, upbringing, education, care, and control of their children, even though the Constitution is silent on the subject
• Same-sex couples are guaranteed the fundamental right to marry under the due process and equal protection clauses
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father's art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers.