On Monday, the U.S. Supreme Court heard oral arguments in two challenges to S.B. 8, Texas' new abortion law. The "fetal heartbeat" statute allows private citizens to sue those who perform, aid or abet abortions. The government itself is expressly barred from enforcing the law. Texas cleverly made it difficult, if not impossible, for abortion providers to block the enforcement of S.B. 8.
Yet, two members of the Court seem prepared to creatively jettison long-standing precedent to stop the law nonetheless. Regrettably, Justices Brett Kavanaugh and Amy Coney Barrett have succumbed to judicial supremacy. A defeat here for Texas will be short-lived. But the long-term impact of this judicial descent will endure for a generation.
In our republic, the Constitution and other federal law are the "supreme law of the land." And Supreme Court justices take an oath to support and defend the Constitution and federal laws. But the decisions of the Supreme Court are not the "supreme law of the land." And Supreme Court justices do not take an oath to defend the decisions of the Supreme Court. For much of American history, these principles were self-evident. But in Cooper v. Aaron (1958), the Supreme Court purported to elevate its own decisions to the status of "supreme law of the land." In doing so, the justices arrogated to themselves the power to resolve any constitutional dispute, notwithstanding the traditional rules of adjudication.
This omnipotent power is commonly referred to as "judicial supremacy." On the Left, this audacity is celebrated. The role of the Supreme Court, the Left cheers, is to advance the law in a progressive direction. Congress and the elected branches can take a backseat. The only majority rule that matters is five members of the Supreme Court.
However, on the Right, this hubris has been derided. The Supreme Court, we argue, cannot amend the Constitution. Moreover, judicial supremacy makes it tempting for judges to get drunk on their own power. Indeed, there is an uninterrupted line between the judicial supremacy of Cooper v. Aaron and what Justice Byron White called the "raw judicial power" of Roe v. Wade (1973).
The Federalist Society was birthed largely in response to the excesses of the Warren Court's judicial supremacy. Generations of conservative law students came of age fully aware of where the yes-we-can approach to judging can lead. Regrettably, that well-worn lesson of history has been lost on two relatively new Supreme Court justices.
Let's start with Justice Kavanaugh. To stop S.B. 8, abortion providers in Texas sued state judges and the law clerks of those judges' court. Clerks are ministerial employees who literally rubber-stamp legal filings. More than a century ago, in Ex Parte Young (1908), the Supreme Court stated that "an injunction against a State court would be a violation of the whole scheme of our government." Justice Kavanaugh acknowledged that this text poses a "real sticking point" in the current S.B. 8 litigation. But for Kavanaugh, that text was in conflict with what he saw as the "principle" underlying Young.
In a conflict between the plain text of a decision and some ethereal "principle," the former should always prevail. But no problem for the Trump appointee; instead, Justice Kavanaugh reached to Shelley v. Kraemer (1948). In that case, private litigants asked courts to enforce private contracts that restricted the sale of property to non-whites. The Supreme Court in Shelley held that judges could not enforce these discriminatory racial covenants. True, the decision repeatedly refers to courts "enforcing" a discriminatory contract, but Shelley certainly does not prohibit judges from even adjudicating such a case. Still, those distinctions are unimportant. With one fell swoop, Justice Kavanaugh can deviate from Young, and reinterpret Shelley.
Let's turn now to Justice Amy Coney Barrett. The newest member of the Court objected to S.B. 8 because it did not permit "global relief." In other words, abortion clinics could not file a single lawsuit that stopped all threats of litigation. Rather, clinics could be subject to multiple suits for the same abortion—although only one monetary damage award is permitted per abortion, under the statute. Here too, Justice Barrett succumbed to the fallacy of judicial supremacy.
Courts do not have the power to bind everyone, everywhere, in all circumstances. Generally, when Adam sues Betty, that judgment only concerns Adam and Betty. Cindy is not subject to that ruling. Justice Barrett blanched that S.B. 8 requires parties to litigate on an "individual-by-individual basis." That case-by-case basis is actually the traditional method of the judicial process—there is no silver bullet that can magically stop unnamed parties.
But back in Cooper v. Aaron, the Court pronounced that its rulings would affect people who are not even parties to a case. Justice Barrett seems to subscribe to this Warren Court dogma. I, for one, dissent. It is not the role of the Court to manufacture new procedural rules to provide "global relief," especially where state courts are free to adjudicate individual claims.
Three decades ago, Justice Sandra Day O'Connor observed that "no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion." She was right. When abortion is at issue at the Supreme Court, all bets are off.
In time, Justices Kavanaugh and Barrett may very well produce rulings that advance judicial conservative principles. But arguments yesterday paint a bleak portrait of the road ahead. Conservative lawyers, and Federalist Society members in particular, should no longer feel compelled to apologize for or defend these two jurists.
The Texas case is certainly not the first, or the last straw. In case after case, Justices Kavanaugh and Barrett have denied review to resolve pressing issues concerning the free exercise of religion, freedom of speech and other core constitutional areas. And where they have ruled, they drag their feet behind the veil of moderation. Yet with abortion, they are prepared to bend over backwards, and modify long-standing precedent, to ensure expeditious review is permitted. Barely two months ago, both jurists allowed S.B. 8 to go into effect. They may now regret those rulings.
In short order, the two newest members of the Court have sipped from the trough of judicial supremacy.
Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the co-author of An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.
The views expressed in this article are the writer's own.
