In the Atlantic, Kimberly Wehle argues that:
By its own maneuvering, the modern Supreme Court has made itself the most powerful branch of government. Superior to Congress. Superior to the president. Superior to the states. Superior to precedent, procedure, and norms. In effect, superior to the people.
Interesting. What does Wehle have in mind?
Most talked about in this regard, of course, is the Court’s ending of long-established reproductive rights in Dobbs v. Jackson Women’s Health Organization. But the assertion of extreme power extends well beyond the issue of abortion.
Wait, what? Wehle’s primary example of the Supreme Court’s supposedly making “itself the most powerful branch of government” — “superior” in position to Congress, the president, the states, precedent, procedure, norms, and the people is . . . Dobbs? The case in which the Court overturned an act of astonishing judicial usurpation and sent power back to the people? The case that returned to the states an authority that the judiciary had falsely claimed for half a century. That was the “assertion of extreme power”?
This is completely backwards. It is an inversion of the truth. It is as upside-down as it is possible to get.
In Griswold, which was a prerequisite case for Roe, Justice Black chided the Supreme Court for doing exactly what Kimberly Wehle says that she’s worried about — and what, eight years later, it would do on abortion, too:
I repeat so as not to be misunderstood that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.
As John Hart Ely noted when it was decided in 1973, there is pretty much no comprehensible case for Roe’s central holding — which, as Ely bluntly explained, was “not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure,” which had answered “a question the Constitution has not made the Court’s business,” and which presented a profound legal and political problem “because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” But if one is going to ignore all this and support it anyway — as many progressives subsequently did — one is required to do better than to take a position as transparently ridiculous as that the Court’s refusal to extraconstitutionally micromanage abortion represents a power grab when, obviously — self-evidently! — it represents the opposite.
There is nothing at all wrong with the Supreme Court stepping in to limit the power of the elected branches when an enumerated constitutional right has been violated. On the contrary: that the judiciary is empowered to play that role is one of the things that makes America so special. But one cannot have it both ways: to enforce constitutionally protected minority rights is often to thwart the transient will of the majority, and it is to do so explicitly. In effect, Kimberly Wehle is trying to play both sides of the same coin; she wants the Supreme Court to grant her the policies that she wants and to pretend that doing so is an expression of democracy. What a ridiculously confused and self-serving approach “living constitutionalism” has become.