Tuesday, June 23, 2015
Linda Greenhouse and Reva Siegel have a post at Balkinization that calls upon the Supreme Court to stay a Fifth Circuit decision refusing to enjoin various provisions of a Texas law regulating abortion clinics. "Casey and the Clinic Closings" concludes with this:
Casey has now been the law of the land longer than Roe itself. The moment has arrived for the Supreme Court to demonstrate its fidelity to the compromise it struck nearly a quarter-century ago. Women have actual, not politically manufactured, health concerns at stake. And dignity, too, is at stake: women's, the Supreme Court's, and the dignity of law itself.
A few points:
- Casey was a compromise, to be sure. But it's hard to imagine anything less un-law-of-the-land-like than that decision. The Constitution is the actual "law of the land"; "compromise" Supreme Court decisions are not. The reasoning of Supreme Court opinions provides a particular kind of law that inferior courts must make use of; but for the rest of us, the opinions of the Supreme Court are the opinions of the Supreme Court, and not "the law of the land."
- The Supreme Court owes fidelity to the Fourteenth Amendment ratified in 1868, not to a compromise that three of its nine Justices struck among themselves in 1992.
- There is nothing dignified about groveling to Justice Kennedy, however effective this may be now and then, and however necessary this may be for anyone who wants his vote. But that is, of course, exactly what Greenhouse and Siegel find themselves doing in "Casey and the Clinic Closings." When we do this (and I do mean "we," for I cannot exclude myself from the sometimes-groveling-to-Kennedy lawyer crowd), we undermine our own dignity.
Unlike the originator of Balkinization, neither Greenhouse nor Siegel professes constitutional originalism. But those who reject constitutional originalism often end up as originalists of a different sort. They simply choose a different part of our positive law to be originalist about. No questioning whether Casey was right (indeed, Greenhouse and Siegel say Casey "is not the opinion either of us would have written"), the job of the Supreme Court is to be faithful to that decision. At stake, they say, is "the dignity of law itself."
They're wrong about that much (thank goodness). How well they know their audience of one, we shall see.