On Meet the Press, Vice President Kamala Harris denounced the conservatives on the Supreme Court as “activists” due to their decision to overturn Roe v. Wade. She objected that the decision ignored decades of precedent and “we are suffering as a nation because of it.” The common attack on the integrity of the justices is beneath the office of the Vice President and only legitimates the unfair attacks on these justices who are fulfilling their oath to uphold what they believe are the dictates of the Constitution (as did their colleagues in dissent in Dobbs).
This week, I had the honor of speaking at the annual judicial conference for the United States Court of Appeals for the Tenth Circuit. I spoke on the recent religion cases but also about the criticism of the Court over its decision to overturn Roe. Indeed, this issue came up in my exchanges with Professor Elizabeth Sepper of the University of Texas at Austin School of Law. Professor Sepper warned that the Court was serving as a “tool” of the conservative religious right and shattering long-standing precedent.
Chief Justice John Roberts also spoke at the conference (as did Associate Justice Neil Gorsuch). Roberts began his remarks by expressly disagreeing with those who questioned the “legitimacy” of the Court simply because they disagree with its constitutional analysis.
In her interview, Harris declared
“I think this is an activist court. We had an established right for almost half a century, which is the right of women to make decisions about their own body as an extension of what we have decided to be, the privacy rights to which all people are entitled. And this court took that constitutional right away, and we are suffering as a nation because of it.”
The fact that the Court overturned a long-standing precedent does not mean that it is an “activist court.” As I have previously noted, justices take an oath to uphold the Constitution and to “faithfully and impartially” interpret the law. It is bizarre to argue that they should vote for some interpretation of the Constitution that they believe is wrong and unfounded just to preserve precedent. If that view had prevailed in the past, Brown v. Board of Education would have upheld the racist precepts of “separate but equal” in Plessy v. Ferguson. When it comes to fundamental rights, justices should faithfully interpret the Constitution.
There may be a greater hold of precedent in statutory interpretations (since Congress can address erroneous or conflicting interpretations). However, in the interpretation of the Constitution, justices are fulfilling an oath to “support and defend the Constitution of the United States.” Stare decisis may protect the Court as an institution from public criticism, but that should not override the duty to correctly and faithfully interpret the Constitution.
As I noted in my exchange with Professor Sepper, the liberal justices have shown the same willingness to overturn precedent when they have a majority or to create new doctrines with sweeping social and political implications. The left did not denounce the Warren Court when it was handing down such sweeping new rulings. It did not denounce Justice Breyer when he wrote routinely voted in dissent on death penalty cases despite decades of precedent supporting the right of states to impose capital punishment.
There is little doubt that the liberals on the Court would overturn Heller and the Second Amendment cases if they had a majority. Indeed, while denouncing the “activist” conservative justices for overturning cases, Democratic senators demanded that cases like Heller and Citizen’s United be overturned. During the confirmation hearing for Justice Kavanaugh, Sen. Sheldon Whitehouse (D-R.I.) demanded that Kavanaugh promise to respect stare decisis on cases like Roe, but then called for overturning cases like Citizens United v. Federal Election Commission. Democratic groups often decry the conservative majority as “partisan” while demanding the packing of the court to guarantee an immediate liberal majority.
Justice Sonia Sotomayor has assured liberals in public speeches that “mistakes” in such high-profile opinions can be “corrected” by the Court in later decisions. In other words, when a majority forms with an opposing jurisprudential view. Does that make her an activist justice according to Vice President Harris?
Dean Erwin Chemerinsky celebrated that “Justice Sotomayor wrote a dissent, in which she said, ‘Trinity Lutheran v. Comer was wrong then, and it’s wrong now.’” While that is a paraphrasing of the justice, does that mean that she has discarded the hold of precedent for politics? Of course not. She is interpreting the Constitution consistently and faithfully according to her own jurisprudential viewpoint.
In the recent Carson opinion, Sotomayor makes clear that “this Court should not have started down this path” in Trinity Lutheran and clearly rejects its hold on the Court. Not surprisingly, Chemerinsky approves of that position.
Hillary Clinton declared that she would only nominate justices who would overturn Citizen’s United. Would those justices then be “partisan hacks”?
None of this means that Harris should not disagree with the Court or reject its reasoning. As Chief Justice Roberts said this weekend, that is fair game. Rather it is the attack on the integrity of the justices that is beyond the pale in my view. The views in Dobbs were not sudden or opportunistic. The Court had continually fractured over basis for Roe, which was itself effectively gutted in Casey. The series of 5-4 rulings had dissents expressing precisely the objections that eventually secured a majority in Dobbs. The ruling was consistent with the long-standing jurisprudential views of these justices.
Harris’ views of the integrity of the Court would be more credible if she did not steadfastly refuse during the election to denounce court-packing schemes. That plan supported by democrats like Sen. Elizabeth Warren is a raw and direct political manipulation of the Court. Yet, Harris refused to oppose such calls during the election.
Unfortunately, the attack on the Court today is likely a foreshadowing of the election to come in the use of rage politics on both sides. This failure of leadership has fueled a crisis of faith in our system. Both her office and the public deserve better from the Vice President.