Sen. Jeanne Shaheen, D-N.H., joined the growing ranks of members of Congress in issuing a warning to the Supreme Court: reaffirm Roe v. Wade or else. The “else” varies from promises to pack the Court to personal accountability for justices. For Shaheen, it is a promise of “revolution.” It is the latest demand that the justices yield to popular demand or any countervailing interpretation of the Constitution. Or else.
“So you say you want a revolution.” However, these threats are an attack on the very concept of impartial judicial review. “When you talk about destruction” of our traditions of judicial review, as the Beatles declared in 1968, “you can count me out.”
I understand that Sen. Shaneen is speaking of a political rather than actual revolution but the implication is that there would be consequences for the Court.
Threatening the Supreme Court has become something of a required public exhibition of faith for Democrats, a demonstration that abstract notions like judicial independence will not distract from achieving political results. Sen. Richard Blumenthal previously warned the Supreme Court that, if it continued to issue conservative rulings or “chipped away at Roe v Wade” it would trigger “a seismic movement to reform the Supreme Court. It may not be expanding the Supreme Court, it may be making changes to its jurisdiction, or requiring a certain numbers of votes to strike down certain past precedents.”
Senate Majority Leader Chuck Schumer also declared in front of the Supreme Court “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price.”
The message is clear and unambiguous: vote “correctly” or you will face personal or institutional repercussions.
According to these politicians, the media, and many in academia, justices should consider such consequences in reading the Constitution. These type of extrinsic considerations are anathema to ethical judging. A jurist should not be concerned how her ruling will be received as opposed to whether it is based on principled interpretative principles. That is precisely why the Framers gave these jurists life tenure. As Alexander Hamilton stated in The Federalist No. 78, judicial independence “is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.”
It was once viewed as anathema to attack the Court or threaten retaliation if justices did not vote as demanded. Indeed, many Democrats criticized President Donald Trump for attacking judges as partisans during his Administration. Now, however, Democrats routinely denounce conservatives as activists and threaten to change the Court if they continue to rule conservatively. Notably, while pointing to conservatives voting together as proof of ideological bias, these same leaders do not denounce the liberal justices who routinely vote as a block from the left of the Court. They are not ideologues because they are ruling “correctly.”
Roe is being used by many as an excuse to engage in raw court packing and jurisdiction stripping. Leaders like Shaheen are suggesting that, if the Court votes wrong, they have license to unleash the “Revolution.” Even academics who criticized Roe are now advocates for court packing. Harvard Professor Laurence Tribe once declared that “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Yet, Tribe is leading other activist professors in calling for the Court to be packed to ensure a liberal majority.
Despite widespread criticism of the constitutional basis for Roe, it is now considered an inviolate case of “super precedent.” Anyone arguing that the issue should be returned to the states in whole or in part are denounced as reactionaries. That position ignores the fact that even Ruth Bader Ginsburg criticized the decision: “Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
What is fascinating about threats against the Court (and insulting billboards by groups like Demand Justice) is that they clearly undermine the effort to preserve abortion rights. If anything, justices are more likely to push back on such pressures rather than yield to them. Yet, it is politically popular to show that you will stop at nothing to achieve political ends, even destroying one of the core institutions in our constitutional system.
In the end, the response to politicians threatening revolution remains the same as it has for the roughly 250 years: bring it on. We had a revolution that ultimately secured our core rights and institutions. Let’s have this debate. A negative ruling from the Court certainly can lead to renewed political campaign, particularly on the state level. However, the directing of such comments to the Court raised great unease for many of us. Regardless of how we feel about the merits of Roe, we remain a nation united by a common article of faith called the United States Constitution. Our politicians may have lost that defining faith, but most Americans are unlikely to embrace the new Revolution over the Constitution:
“You say you’ll change the constitution
Well, you know
We all want to change your head
You tell me it’s the institution
Well, you know
You better free your mind instead”