In a 1984 lecture on public policy, Judge Robert Bork related the story of English jurist Baron Parke being asked what gave him the greatest pleasure in the law, to which Parke replied, “Writing a strong opinion.” Pressed to explain what exactly he meant, the imperishable answer was, “It is an opinion in which, by reasoning with strictly legal concepts, I arrive at a result no layman could conceivably have anticipated.”
As Bork went on to say, we have certainly come a long way since that sort of formalistic legal approach. How the layman responds to this or that decision by the Supreme Court is nowadays mainly dependent upon the same criteria the justices seem to rely in arriving at decisions — ideological alignment. Concerningly, that alignment has trended towards an ideology that encourages a reading of a Constitution that’s exceedingly flexible and replaces its foundations with moral abstractions.
In Obergefell v. Hodges, better known in perpetuity as the “gay marriage case,” the majority of the Supreme Court took it upon itself to be final arbiter of a moral, not a legal, question. Whatever one thinks of the outcome — a redefinition of marriage to include same-sex unions — the decision was simply bad law. This was a question to be determined democratically, at the state level, not by the Supreme Court. The court’s role is determine whether or not a law meets constitutional muster. On this issue, the definition of marriage, the constitution is silent. So should the court have been.
But in not remaining silent, the court eroded the democratic process, which, ironically, was being used to great success by advocates of same-sex marriage. Only 13 states still had laws on the books that preserved the traditional definition of marriage. Arguments against its merits notwithstanding, same-sex marriage was well on its way to becoming enshrined in law and society in the way it ought to have been — through the democratic process at individual state legislatures. The court didn’t need to rule on this issue and shouldn’t have.
This was not the only instance in which the court exceeded its brief. In a case from Arizona, the court’s liberal majority found in favor of a latitudinarian interpretation of the word “legislature” — in effect deciding that “legislature” means whatever one wishes it to mean (a reading that falls neatly in line with the approach those particular justices take to interpreting the Constitution in general). The case revolved around a referendum decision by Arizona voters that stripped from the Arizona Legislature the power of drawing electoral district boundaries and giving that authority to an independent commission despite the rather clear wording in the elections clause of Article 1, Section 4 of the Constitution, which states “the times, places and manner of elections for senators and representatives shall be prescribed in each state by the legislature thereof.” There was no more ambiguity floating around any of the framer’s minds as to what was meant by “legislature” than you hold right now. And yet five liberal justices decided remarkably that legislature means, well, pretty much anything. I shudder awaiting what new powers that may now bestow upon state regulatory agencies. Ah, the unanticipated joys of redefinition.
The court, joined by Chief Justice John Roberts this time, made a similarly elastic interpretation of the word “state” in its decision in King v. Burwell, better known in perpetuity as the “SCOTUScare case,” which effectively upheld the Affordable Care Act. At issue was whether health care subsidies were to be disbursed only in states that adopted their own health care exchanges, as the wording of the law seemingly clearly stated. Perhaps summoning his own internal Baron Parke, Roberts said that the phrase “established by the state” was actually a generic term referring to the government regardless of level. This rather malleable interpretation was arrived at by Roberts’ almost radical desire to defer to Congress on matters legislative. His instinct is entirely correct. But at what point does this impulse overcorrect to become a tautological exercise amounting to a rewriting of the law?
Later in his same 1984 lecture, Bork said, “Attempts to frame a theory that removes from democratic control areas of life the framers intended to leave there can only succeed if abstractions are regarded as overriding the constitutional text and structure, judicial precedent and the history that gives our rights life, rootedness and meaning.”
If the Supreme Court is to successfully fulfill its critical role, it needs to emancipate itself from the influence of moral abstractions and remind itself its role doesn’t include creating laws or rights.