How to Criticize the Supreme Court

Andrew Coan

Many liberal and progressive critics have condemned Dobbs v. Jackson’s Women’s Health Organization as a grave threat to the rule of law. But the best argument against Dobbs is not that the Court’s decision was lawless. It is that Roe was right—more specifically, that Roe got the political morality of abortion regulation right. The same holds true, with the relevant changes, for most controversial Supreme Court decisions. This is a straightforward implication of the model of constitutional decision-making that liberals and progressives have embraced for decades.

Virtually every liberal or progressive approach recognizes the centrality of moral judgment to constitutional decision-making. Common-law constitutionalism requires moral judgment to decide when to follow and when to deviate from established precedent–and also to apply established precedents to new circumstances. Ronald Dworkin famously placed moral judgment at the center of constitutional interpretation and called on the Supreme Court to serve as a “forum of principle.” Garden-variety living constitutionalism requires moral judgment to adapt the Constitution to changing circumstances and to overcome the bigoted or exclusionary attitudes of previous generations. Even Alexander Bickel, with his famous emphasis on judicial humility and the passive virtues, thought the essential role of the Supreme Court was to discern and articulate enduring moral principles.

The one glaring exception is John Hart Ely, who defended his representation-reinforcement approach as a method for avoiding moral judgment. But liberals and progressives today generally regard this aspect of Ely’s argument as an abject, if well-intentioned, failure. Many still embrace the idea of representation-reinforcing judicial review, but they generally do so on the consequentialist ground that courts are more trustworthy guarantors of the democratic process than elected officials. Virtually no one shares Ely’s view that courts can perform this role without making moral judgments.

Among mainstream approaches to constitutional law today, only originalism and Thayerism purport to exclude moral judgment from the legitimate grounds for decision of particular cases. Of course, both of these approaches still require normative justification themselves. And it is debatable whether their adherents can, or do, avoid moral judgment in practice. But neither originalism nor Thayerism is helpful to critics of Dobbs. Almost no one defends the constitutional right to abortion on originalist grounds. (The creator of this blog is a distinguished exception, but the version of originalism he champions allows a large role for moral judgment.) Meanwhile, Thayerism requires courts to uphold virtually all challenged legislation, presumably including abortion restrictions. The only mainstream approaches that support a constitutional right to abortion require moral judgment to generate that result.

Anyone who takes this description of U.S. constitutional law seriously should recognize that moral judgment is a double-edged sword. When liberals or progressives control the Court, they can be expected to push constitutional law to the left. The larger their majority and the further left the median justice, the further and faster they are likely to push. When conservatives control the Court, they can be expected to do the same in reverse. This is just how constitutional law works in the U.S.—and how it should work, according to the standard liberal and progressive accounts. It is also the only plausible way that Roe v. Wade could have been justified in the first place.

There are, of course, limits on the extent to which justices can legitimately inject their own moral views into constitutional law. Under every mainstream approach to constitutional decision-making, even Ronald Dworkin’s, other legal norms constrain the role of moral judgment. Judicial decisions must have some plausible support in the accepted forms of constitutional argument–text, history, precedent, structure, etc. And it would be a grave breach of legal norms for judges to make decisions primarily for partisan political advantage or on the basis of a bribe. Decisions that violate these norms can persuasively be condemned as lawless. But in the sort of difficult and contested cases that make their way to the Supreme Court, the justices will often enjoy considerable latitude to bend the law toward their sincerely held moral views.

Dobbs, then, is not lawless or illegitimate. It is a perfect—and perfectly ordinary—illustration of the centrality of moral judgment to U.S. constitutional law that liberals and progressives have insisted upon for decades. This ordinariness does not, by any means, imply that Dobbs was correctly decided or should not be criticized. It does not even imply that Dobbs should not be criticized harshly or condemned as extreme. But the best and only way for liberals and progressives to persuasively criticize the result in Dobbs (as opposed to the Court's reasoning) is to challenge the pro-life perspective directly.

The point is a general one that extends to most hotly contested areas of constitutional law. There are plenty of good reasons to criticize Supreme Court decisions that do not involve challenging their moral premises. But barring flagrant partisanship or another similarly clear breach of legal norms, such criticism will only rarely undercut the ultimate outcome in the sort of constitutional cases that typically find their way to the Supreme Court. These are, almost invariably, cases in which the conventional forms of constitutional argument afford the justices ample room to draw on their sincerely held moral views, defined broadly to encompass the complex blend of empirical prediction and moral judgment that goes under the heading of “institutional competence.” In other words, the Court can lawfully reach more than one result, with the correct decision being determined by moral rather than legal judgment in the conventional sense. Where this is the case, any persuasive critique of the result will need to challenge the Court’s moral premises directly. 

I elaborate on these points in my new draft essay, “What Is the Matter with Dobbs?”