This commentary is by Rich Clark, Ph.D., a professor of political science at Castleton University.
In a week in which Gallup released a report showing a record low level of confidence in the Supreme Court, we saw the issuance of two decisions that help explain the public’s concern: New York State Rifle & Pistol Association v. Bruen and Dobbs v. Jackson Women’s Health Organization.
The problem with these cases, as it pertains to the public image of the court, is not necessarily the outcomes but rather the inconsistent reasoning of the majority. The public feels as though partisanship rather than legal jurisprudence is the basic motivation of the justices, and ruling for far-right causes with inconsistent reasoning supports the public’s view.
Of course, it is not necessary for Supreme Court rulings to follow public opinion; in fact, the framers designed a court that would be shielded from public opinion, while the other two branches of government must seek public support for their positions.
At the same time, however, it is also of concern when a court runs afoul of public opinion without strong rationale. While Congress has the power of the purse, and the executive has control over the machinery of government, the court has only its reputation and the public’s sense of credibility. When the public questions the legitimacy of the court, the court has lost its power, which then serves neither the court nor the people.
So what about the Bruen and Dobbs rulings have challenged the court’s legitimacy? I would argue that the inconsistency of the reasoning in those cases has called the court’s motives into question.
- In the N.Y State case, the court ruled that Second Amendment protections could not be regulated by the states. A right is a right — full stop. The majority opinion based its argument on precedent — D.C. v. Heller (2008) and McDonald v. Chicago (2010) — that established for the first time an individual’s right to “keep and bear arms.”
Heller and McDonald focused primarily on the “keep” arms, while Bruen focused more on the right to “bear arms.” Citing McDonald, the majority stated that the right to bear arms for self-defense is not a “second-class right” but rather equal to all other rights guaranteed, and the opinion concluded, “New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.”
- In the Dobbs case, the court repealed for the first time a right of the citizens that had been, like the right to bear arms, established by precedent with the power of the Fourteenth Amendment. That the right to obtain an abortion is not enumerated in the Constitution — an argument cited by the majority — contravenes the Ninth Amendment’s thrust that the enumeration of some rights “shall not be construed to deny or disparaged others retained by the people.”
In other words, the right to obtain an abortion should not be considered a second-class right.
Contrary to its ruling in Bruen, the majority in Dobbs — the same justices, in fact — argue that it is best to allow states to regulate this constitutional right. The way that they tried to reconcile the two opinions was to repeal the right established by precedent in Roe v. Wade (1973) and reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). In one case, the court argues that rights cannot be regulated by states, whereas in the next the argument is to turn the matter completely over to the states. Bruen limits the states’ regulation of rights, while Dobbs allows an established right to be limited and even repealed by states.
It is easy to understand why citizens would assert that the rulings are not based on clear legal arguments but rather on the justices’ prejudicial opinions. The opinions are seen by many citizens — myself included — as rationale for decisions decided not by law but by political dispositions.
Consequently, the confidence in the court as a non-prejudicial arbiter of the law and the Constitution is severely eroded by these contradictory opinions.
