The new Supreme Court term is underway and full of important constitutional-law cases. The justices have agreed to make decisions that will affect how Americans vote, affirmative action, the effectiveness of public-sector unions, and the death penalty. Abortion, immigration, religious freedom, and voter-ID cases are likely to be heard as well.
No one knows how these cases will be resolved but we can predict with reasonable certainty that the majority opinions will claim fidelity to the Constitution while the dissenting justices will accuse them of violating it. For example, Chief Justice John Roberts ended his blistering 25-page dissent in last June’s same-sex marriage case (Obergefell v. Hodges) by arguing that those in favor of the decision should not “celebrate the Constitution. It had nothing to do with it.”
The chief’s accusation suggests Obergefell was different in a serious way from other Supreme Court constitutional-law cases, and that this departure was a very bad thing. But he was incorrect on both counts. The Constitution itself has very little to do with most constitutional-law cases, and if the justices are going to exercise a strong power of judicial review, that reality is, indeed, a very good thing.
University of Chicago Law Professor David Strauss has persuasively argued that in most Supreme Court cases, the actual text of the Constitution plays at most a “ceremonial” role because the text rarely helps judges resolve hard cases. Furthermore, the “original meaning” of that text also does little work generating results and “hides the ball by concealing the real basis of the decision.”
Instead of relying on the text or history of the Constitution, Strauss argues, Supreme Court justices actually decide cases pursuant to classic common-law decision-making. This method involves an analysis of prior court cases combined with examination of policy consequences. Case law changes over time because the court’s personnel changes and different justices hold different values.
Roberts himself has written many constitutional-law opinions that have virtually nothing to do with the U.S. Constitution in the sense of his accusation in Obergefell. For example, in Shelby County v. Holder, he ruled unconstitutional the coverage formula in Section 4 of the Voting Rights Act, which he argued was based on old and irrelevant data. Section 4, along with Section 5, required certain states and counties to seek clearance from either a three-judge court or the Department of Justice when making changes to their voting procedures (the concern was a pattern of racial discrimination in election laws). A major part of Roberts’s rationale centered on a “fundamental principle of equal state sovereignty” limiting Congress’s ability to treat different states differently.
There is, however, nothing in the Constitution’s text supporting such a principle. Nor did the majority point to any historical evidence suggesting such a limitation on Congress’s powers under Section 2 of the 15th Amendment, which explicitly grants Congress the power to enforce that amendment’s ban on racial discrimination in voting through “appropriate legislation.”
Moreover, it is quite bizarre (as a matter of history) to think of the Civil War-era amendments as containing an “equal state sovereignty” principle given the reason for their adoption in the first place: to make sure Southern states treated the freed slaves equally with whites. Perhaps that is why the only real authority the majority could cite for the principle was dicta that Roberts wrote in a prior case. This is not to argue that the state sovereignty principle is a bad one today (although it probably is), just that it has little to do with the Constitution.
Roberts also concocted an “anti-mandate principle” in the first Obamacare case, leading him to write an opinion denying to Congress the power under the Commerce Clause and the Necessary and Proper Clause to require Americans to purchase health-care insurance (he saved the law by calling it a tax). But, there is no textual support for such a judicially created limitation, and early Congresses enacted mandates under several different constitutional provisions. This judicially invented anti-mandate principle limiting federal power may or may not be a good thing, but it has little to do with the text or history of the U.S. Constitution.
The Supreme Court’s free-speech jurisprudence also has little to do with the First Amendment other than that provision’s general license for the court to protect “speech.” For example, nothing in the text or history of the First Amendment explains the court’s choices to protect hate speech but not obscenity or to protect expressive conduct like burning flags and draft cards that likely would not have received such protection at the founding.
In addition, much of the court’s free-speech jurisprudence has changed dramatically over the years. At one time, commercial speech was given little or no protection, whereas today it receives strong protection. What changed? Not the constitutional text or our understanding of the history of the text’s adoption but the justices’ views on the importance of free speech balanced against other interests. This balancing of speech and non-speech values represents the aggregate perspectives of Supreme Court justices—not adherence to text or fidelity to history.
This descriptive account of free-speech doctrine is equally true for freedom of religion, gun regulation, the scope and power of the federal government, and virtually every other litigated area of constitutional law. As Strauss has demonstrated, the court’s constitutional-law cases are nothing less than the development of constitutional values over time by the justices acting in the common-law tradition. Of course, a huge difference between that tradition and constitutional law is that under the common law the legislature could overrule courts, which is not true for constitutional-law decisions.
If this country is going to be governed in part by a robust system of judicial review (a state of affairs I constantly argue we as a people might want to reconsider), we should at least see that process clearly. To pretend that “constitutional law” is governed by a document ratified in ancient times is absurd. The people of 1787 or even 1868 could not foresee nor help us answer today’s difficult constitutional questions, which is why the justices decide cases the only way they can: by examining old decisions and analyzing the likely consequences, good and bad, of their new choices. The Constitution, itself, is the starting point but rarely if ever dictates results in hard cases. We owe it to ourselves to at least admit that it is the justices’ values that matter the most.