Washington Insider
William L. Saunders Of Counsel Americans United for Life Washington, DC and President Fellowship of Catholic Scholars www.catholicscholars.org
Washington Insider The most important development since the start of the year, bearing upon the sanctity of life, was the death of Antonin Scalia. As a member of the Supreme Court, Scalia was a renowned thinker and acerbic critic. He could, and did, turn a memorable phrase. For instance, he called the Court s propensity to overrule otherwise settled legal doctrine when abortion is involved, the ad hoc nullification machine. 1 Although known as a conservative, it is more accurate to think of him as an originalist that is, when it came to constitutional interpretation, he did not take a conservative position; rather, he applied the text to the case. The Constitution had taken the only position that mattered; his job was to apply it. His position is in sharp contrast to those who believe that the judge s role is to do justice. While that formulation appeals to our innate sense of right and wrong, it is clearly wrong as judicial philosophy because it makes the judge into something like a king it is only his sense of what is just that matters. Scalia understood that the founders of this country endeavored to establish a constitutional democracy, not an oligarchy of judges. Hence, as a justice he hewed close to the text the text is the clearest expression of how the founders intended to structure our democracy; to depart from it (even in the name of doing justice under a living constitution ) is to substitute the rule of judges for the rule of citizens. This was Scalia s complaint against the ad hoc nullification machine. The machine (that is, the pro-abortion majority of the Court) ignored in cases from Roe v. Wade to Planned Parenthood v. Casey 2 the text of the Constitution, by interpreting the word liberty in the Fourteenth Amendment to include a right to abortion. The Court thereby imperils both its own legitimacy, which comes solely from article 3 of 1. See, for example, his remarks in Madsen v. Women s Health Center, 512 U.S. 753 at 784 785 (1994). 2. Roe v. Wade, 410 U.S. 113 (1973). Planned Parenthood v. Casey, 505 U.S. 833 (1992). 2016 The National Catholic Bioethics Center 3
The National Catholic Bioethics Quarterly Summer 2016 the Constitution, and the rule of law, which means the application of the law fairly, without having prejudged the result. As he said in 2000 in dissent in Stenberg v. Carhart, which struck down state bans on partial-birth abortion, Today s decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted with a firestorm of criticism, as well it should. I cannot understand why those who acknowledge that... the issue of abortion is one of the most contentious and controversial in contemporary American society,... persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people where the Constitution, by its silence on the subject, left it and let them decide, State by State, whether this practice should be allowed. 3 Thus, since the Constitution is silent about abortion, the Court has always lacked jurisdiction to deal with it. Nonetheless, the Court, by asserting the authority to make judgments about undue burdens and substantial obstacles, which are inherently policy judgments (e.g., what are appropriate limits on abortion?), has usurped the role of the legislature, and inserted itself in the midst of the abortion controversy, from which it cannot extricate itself (because it is forever reversing every new state limit). As Scalia put it, One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions.... The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer s and hence not in the judge s workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so. 4 Scalia was joined on the current Court by three other Justices John Roberts, Samuel Alito, and Clarence Thomas who agree on this point. In contrast, four other justices are adherents of the living constitution approach and support Roe and Casey. 5 The ninth justice Anthony Kennedy is hard to classify: he was a principal architect of upholding Roe s abortion rights in Casey through the substantial obstacle/undue burden test, but he has complained that Casey has been improperly applied, 6 and he supplied the crucial fifth vote to uphold the federal ban on partial birth abortion in Gonzales v. Carhart 7 even using language that suggests the Court should abandon the ad hoc nullification machine. The first point to notice is that while Justice Scalia was alive, the Court was split 4 4 1, making Justice Kennedy the key or swing vote on any abortion case. Indeed, during the current Supreme Court term, two important cases will be decided on abortion, and each case had to be argued so as to persuade the swing vote, Justice Kennedy. 3. Stenberg v. Carhart, 530 U.S. 914 at 956 (internal citations and emphases omitted). 4. Hodgson v. Minnesota, 497 U.S. 417 at 480 (1990). 5. These justices are Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg. 6. See his dissent in Stenberg v. Carhart. 7. Gonzales v. Carhart, 550 U.S. 124 (2007). 4
Saunders Washington Insider This is the background for the intense political struggle to replace Justice Scalia. 8 For abortion supporters, this is an unimaginable opportunity. To be able to replace a firm opponent of the constitutional right to abortion (Scalia) offers the prospect of a firm 5 3 1 Supreme Court majority in favor of abortion. This would render the Kennedy swing vote irrelevant. Under the leadership of Justice Ginsburg, abortion rights could be anchored more securely and perhaps for decades under the equal-protection clause of the Fourteenth Amendment, rather than under the largely discredited due-process analysis, 9 as Ginsburg argued in dissent in Gonzales. It was widely expected that the next president would have the opportunity to replace one or more justices. (Ginsburg, Kennedy, Breyer, and Scalia were all over seventy years old on January 1, 2016.) But no one expected that the currently sitting president would have the opportunity to replace a justice, much less one of the conservative four. 10 With Scalia s death, Obama was given that opportunity. Obama and various pro-abortion rights supporters asserted that the President was required by the Constitution to fill an existing seat on the Court before his term expired. However, that is inaccurate, and it misreads the Constitution. The Constitution does not give the President the power (much less the obligation) to fill a seat; rather, it sets a role for both the President and the Senate. Article 3 states that the President shall nominate, and by and with the advice and consent of the Senate, shall appoint... judges of the Supreme Court. Thus, as is sensible in a government of three coequal branches, a seat on the third branch, the Court, can be filled only by the action of the other two branches, the executive (the President) and the legislature (the Senate), not by the President acting alone. Consequently, the decision whether and when to put forward a nominee is a prudential judgment. The President may do as he wishes, but nothing requires the Senate to concur. 11 The Republican leadership of the Senate said it would not act on any nominee from the President, whose term expires in a few months. 12 Nevertheless, the President eventually decided to nominate a sitting judge on the DC Circuit, Merrick Garland. 8. Scalia himself would not have been surprised by the furor. As he said in Casey (p. 996), Roe has fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular ever since. 9. The Fourteenth Amendment states, in pertinent part, Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 10. There had been speculation that Justice Ginsburg might resign in the summer of 2015, giving President Obama plenty of time to create sufficient political pressure for the Senate to confirm his nominee to replace her. Of course, she did not do so. 11. Democrats, for instance, have refused to consider Supreme Court nominees in similar circumstances. See Neil A. Lewis, Waiting for Clinton, Democrats Hold Up Court Confirmations, New York Times, September 1, 1992, http://www.nytimes.com/. 12. Senate Majority Leader Mitch McConnell and the Chair of the Judiciary Committee Chuck Grassley have both said so. See, for instance, their February 19 op-ed in the Washington Post, Democrats Shouldn t Rob Voters of Chance to Replace Scalia, https:// www.washingtonpost.com/. 5
The National Catholic Bioethics Quarterly Summer 2016 The Republican leadership of the Senate repeated that it would not act on the nomination. Scalia s seat should be filled, they believe, by the next president. 13 It is important to understand that this stalemate is due to a disagreement over what is the proper judicial philosophy in interpreting the Constitution: is it originalism or living constitution? Thus, it is a controversy over the proper role of a judge in a democracy. It also underlines the importance of the presidential election later this year, for surely the next president will at least nominate replacements for additional justices. Assuming, as seems nearly certain, that the Senate does not act on the Garland nomination, what will be the result regarding the pending life-related cases mentioned above? 14 Probably the Court will split 4 4 between the so-called liberals 13. There are some procedural maneuvers by which the Democrats might force a vote, but it seems unlikely they will do so since it would set a precedent that could be subsequently used against them. It is also possible the Congress will reconvene in a lame duck session after the November election (and until the inauguration of the next president in late January). If control of the Senate has shifted to the Democrats in the election, they could then concur and confirm Garland. But this, again, would set a precedent that could be used by the Republicans against them subsequently, so it seems unlikely. The Republicans themselves could, if they retain control of the Senate and if Hillary Clinton is elected to be the next president, concur and confirm Garland on the grounds that a nominee from Clinton would be worse! The possibilities are endless. 14. A case concerning the freedom of conscience of pharmacists is pending for review before the Supreme Court, which has not yet decided whether to grant review. That case is Stormans v. Wiesman, no. 12-35221 (9th Cir., July 23, 2015), available at http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/23/12-35221.pdf. The case concerns the law in the state of Washington, which until 2005 protected the conscience rights of pharmacists. However, in 2005, a new regulation was adopted requiring pharmacists to provide abortifacient drugs. While the pharmacists who objected were allowed to provide a list of other pharmacies in the area, those pharmacists were specifically prohibited from doing so if their refusal was based on reasons of conscience. In other words, only those who had conscientious objections were prohibited from exercising them! (The new regulations expressly permitted the pharmacy to refuse provide any and all drugs if that refusal was based on business reasons, such as fraudulent prescriptions or a customer s inability to pay.) Pharmacies were required to have at least one person on staff who was present in the pharmacy and was willing to provide the abortifacients. The Stormans family, who work for and operate pharmacies, filed suit in federal court under the First Amendment. (RFRA, discussed elsewhere here, was not involved because it applies only to actions of the national government.) The pharmacists won in the district court, which held that the regulations violated the religious freedom of the pharmacists because it intentionally discriminated against religious or conscience beliefs. However, on appeal to the Ninth Circuit, the lower court s decision was reversed. The Ninth Circuit, on July 23, 2015, ruled that the law was neutral. It is difficult to imagine that the Supreme Court, if it grants review, will uphold the Ninth Circuit, because the regulation seems clearly targeted against and is, hence, not neutral toward those pharmacies that, as small family-owned businesses, refuse, for reasons of conscience, to provide abortifacients (or even to have them available in the store). Of course, if the Supreme Court does not grant review, the decision in the Ninth Circuit will remain the law for the states in its jurisdiction California, Oregon, Washington, Arizona, Nevada, Idaho, Alaska, Hawaii, and Montana. Even so, 6
Saunders Washington Insider and conservatives 15 (although it is possible the Court will hold over the cases to the next term). 16 If so, the results in the lower cases will stand, and the underlying issue will be left to be decided in future cases. That means, since the Fifth Circuit Court of Appeals upheld it, that the Texas law that requires abortionists to have admitting privileges in local hospitals and requires abortion facilities to meet the standards of ambulatory care centers remains in place. 17 It would also indicate that the HHS mandate would remain in force in most circuits (in all the cases decided by appellate courts, save one, the courts have found for the government and against the religious institution). 18 However, following oral argument, the Supreme Court issued an order to the parties in the HHS mandate litigation requiring them to brief (address) the question whether contraceptives (in this context the term includes several abortifacients) could be supplied to employees of religious institutions if the institution, rather than notifying the government or filling out a special form (arguably making it complicit by supplying an essential step in the process), merely let its insurer know, when the terms of its insurance are being negotiated, that it would not offer contraceptives under the policy. 19 (There are, obviously, many ways the government could ensure that contraceptives are available without involving the religious institution, such as by providing them through separate policies on the health care exchanges or by supplying them itself to anyone who asks.) This unusual request from the Court seems to indicate that the expected 4 4 split among the justices may not be present in this case, and that the Court (by a majority) will actually resolve the case as the Supreme Court s order suggests, that is, ruling that the government cannot require the religious institutions to take actions that arguably make them complicit in the provision of services they judge to be immoral. This would be the just result, and one that is long overdue. it seems certain that the issue of pharmacists rights of conscience will arise in future cases and that, eventually, the Supreme Court will have to rule on the issue. 15. It is purely speculative to assume that Kennedy votes with Roberts, Alito, and Thomas so as to make a four-vote pro-life bloc; however, given his votes in prior cases related to the issues at stake in the current two life-related cases before the Court, that speculation is not unreasonable. 16. Nothing in the Constitution requires that there be nine justices or that all seats be filled. The Court has operated in the past with fewer than nine and without all authorized seats being filled. See, for example, Josh Blackman and Ilya Shapiro, Only Eight Justices? So What, Wall Street Journal, February 23, 2015, http://www.wsj.com/. 17. Whole Women s Health v. Hellerstedt, no. 14.50928 (5th Cir. June 9, 2015). Justice Kennedy still might provide the deciding vote in a 5 3 opinion overturning the Texas law. (Kennedy s vote is only relevant if he votes against the law, for if he votes to uphold it, assuming that the liberal four of Ginsburg, Breyer, Sotomayor and Kagan vote against the law, a Kennedy vote would create the 4 4 split.) After all, he is the author of the substantialburden test that is currently under use, and no one, for reasons articulated by Justice Scalia above, can predict how he (or anyone) applying that test will vote. 18. For an extensive discussion of the HHS mandate cases, see my Winter 2015 Washington Insider column. 19. Zubik v. Burwell, 577 U.S. (March 29, 2016), http://www.supremecourt.gov /orders/courtorders/032916zr_3d9g.pdf. 7