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Why the Supreme Court is naturally chaotic

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OCTOBER 31, 2022

As the Supreme Court begins its new term, cases on election legislation, LGBTQ+ rights and affirmative action will once again be on this country’s mind. With the Court as the subject of significant controversy and congressional elections, the American public should understand why it is not uniquely chaotic today, but rather chaotic by its very design.

Anyone who takes an introductory constitutional law class knows that there are two basic and mainstream interpretations of the Constitution: textualism, or originalism versus contextualism, or non-originalism. 

Textualism dictates the Supreme Court should follow the Founding Fathers’ or legislators’ intentions when passing their laws. Alternatively, contextualism dictates that the Supreme Court should interpret the Constitution according to the current context of the case. 

There are prevailing problems for both judicial ideologies, but the most prominent and identifiable flaw is the lack of a limiting principle. 

Since overturning a Supreme Court ruling is virtually impossible, done only by constitutional amendment or future SCOTUS ruling, the Supreme Court rulings are semi-final and, therefore, must have a limiting principle to prevent negligent rulings. 

If the interpretation of a law’s constitutionality is left to the discretion of five justices in the majority, then the Constitution could be wrung so vigorously as to misinterpret the legislator’s intentions of the law or fabricate nonexistent rights. One of my friends once joked that if the Supreme Court wanted to, they could use some warped interpretation of the Constitution to twist and pull until they found some “right to a pony” in the 27 amendments. 

Essentially, this was one of the fundamental originalist objections to the 1973 Supreme Court case Roe v. Wade, which found a constitutional right to privacy for an abortion under the due process clause of the 14th amendment. 

According to originalists, regardless of any personal, ethical stances on abortion, when Congress and the states ratified the 14th amendment in 1868, they did not believe codifying a right to due process under the law created a legal right to abortion. 

As Justice William Rehnquist pointed out in his dissent from the majority in this case, when the 14th amendment was ratified, there were “at least 36 laws enacted by state or territorial legislatures limiting abortion … 21 of the laws on the books in 1868 remain in effect today.” He referenced these laws because their existence at the time showed the framers of the 14th amendment did not believe that its ratification struck down these restrictions.

Renquist additionally argued the Court providing an allowable legislative framework for abortion diverts from the original intention of the 14th amendment. He said the majority opinion in Roe breaking pregnancy into three terms and outlining acceptable guidelines for state restrictions on abortion was “judicial legislation” and beyond the Court’s purview. “The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.”

On the other hand, Justice Harry Blackmun argued in his majority opinion that while the “Constitution does not explicitly mention any right of privacy,” there are numerous judicial precedents established by the Court that “recognize a right of personal privacy, or a guarantee of certain areas or zones of privacy.”

Blackmun then asserted that the 14th and Ninth Amendments extended a woman’s right to terminate a pregnancy but did not expand beyond that assertion. 

Instead, he brought in the modern context of abortion — namely, the potential detriment of preventing women from getting an abortion because of physical and psychological harm during preganancy.

The references drawn upon in both the dissent and majority opinions magnify the fundamental disagreement between the broader ideologies and provoke a larger question about American jurisprudence — “What is the proper guide to determining constitutionality?”

While contextualism lacks a limiting principle, originalism is not any better. 

If originalists want to draw on the framers’ original meaning of the law to guide their rulings of constitutionality, it would be incredibly difficult to narrow down one original meaning. For example, the Bill of Rights was ratified in 1791 after a lengthy debate and eventual compromise, but the framers disagreed vehemently on how America’s new government should act. 

While George Washington was famously independent of any political party, then-Secretary of State Thomas Jefferson and Treasury Secretary Alexander Hamilton had fierce debates about the federal government’s scope and whether the Constitution granted certain powers to Congress, including establishing a national bank. Both men were instrumental to the creation of the American government and yet agreed on hardly anything. 

If any originalist judge had to rule on the commerce clause and referenced the original meaning of the clause, which meaning or interpretation by the framers would he reference? Like today’s politicians, the framers had strong disputes over the Constitution’s meaning, so drawing on solely the original meaning of the Constitution would be impossible because of the framers’ contradicting opinions. An originalist judge would then have to handpick which framer’s opinions would reaffirm their ruling, opening the door to bias and a lack of a limiting principle once again. 

Another contextualist criticism of originalism is that judges are shackled to the past and cannot properly rule on cases with modern contexts. The Constitution is undeniably silent on a wide variety of modern topics, including how free speech relates to the internet, artificial intelligence citizenship rights or regulating cryptocurrency. Therefore, since the Constitution’s language is frustratingly vague, the Supreme Court should determine “implied rights” through their interpretation and discretion. 

Originalists would counter-argue and say taking modern contexts into account at the expense of the original meaning of laws transforms the judiciary into a secondary Congress — if they wanted an amendment or law to change, that is the prerogative of Congress and arguably the executive branch. The term “judicial activism” is thrown around to accuse the court of using its judicial authority as a vehicle for entrenching social change without an election.

Herein lies the natural chaos of the Supreme Court’s design. If the Supreme Court must act as the final arbiter of a law’s constitutionality, then what should be the basis for that determination? Should justices consider modern contexts, knowing the process of ratifying constitutional amendments is rigorous and rare? Should the original meaning of laws require the Supreme Court to defer decisions to political branches of government? 

There is no objective set of facts that can pinpoint whether a law is constitutional the same way scientists can unequivocally prove water is composed of Hydrogen and Oxygen. 

Due to the consistent deference of political power to the highest court in the land, how five justices in the majority view a law determines how the entire American society proceeds. The nation waits in anticipation, dread or excitement when nine justices write an opinion that can define a century’s politics without a single vote cast by the people. 

At least in a 535-member Congress that is more democratically representative of the people, legislation passes after months of drawn-out deliberation, passionate negotiation, the rigorous balance of numerous political interests and a final consensus. True levers of social change should occur in Congressional majorities that are empowered by the people’s consent. 

As the Supreme Court continues to hear arguments and rule on fundamental issues about our democratic republic, comprehensive judicial reform, such as reconsidering life tenure, should be on the table. Packing the Supreme Court to gain an ideological majority is unwarranted because of how partisan the court may become with each new presidential administration and Senate, making the highest court in the land just an extension of the ruling political party. 

However, regardless of what judicial reforms are necessary, our democratic republic may very well descend into a gripping juristocracy if the mechanism of social change relies on the convenience of winning over five unelected justices rather than tapping into the people’s will and earning representative majorities.

Contact Ethan Kim at 

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OCTOBER 31, 2022