Destroying Court Impartiality To Reverse Roe Won’t Go As Well As Hawley Thinks

Destroying Court Impartiality To Reverse Roe Won’t Go As Well As Hawley Thinks

Before we completely give up on an independent judiciary, we must redouble our efforts to preserve public virtue through limited government, not despite it.
Kyle Sammin
By

Missouri Sen. Josh Hawley may have his finger on the pulse of the conservative movement in America, but by now he also must be detecting the reverberations of an old quarrel. He announced late last month that he intends to vote against any future judicial nominee who has not acknowledged the Supreme Court’s pro-abortion ruling in Roe v. Wade was wrong the day it was decided.

Hawley’s new policy is not unprecedented. Democrats routinely demand fealty to Roe from judicial nominees. For Republicans, however, Hawley’s challenge is novel.

The reaction has already divided conservatives because it gets to the heart of important and unresolved questions within conservatism. What do we expect from our judges? More broadly, what is the purpose of government? Do we maintain governments to instill virtue in the people, or to maintain the freedom for each of us to find our own paths to virtue?

The questions are academic, maybe, but it is important for those who make our laws to understand the ideas behind them. Hawley’s defense of the unborn is stirring and serves a worthy cause — maybe the worthiest cause of our time.

There are times when that is enough; when the cause is so just that anything standing in its way must fall. We must also recall, however, that zeal for a virtuous cause should not undermine the institutions that maintain American liberty in the first place.

Hawley’s Roe Position Engages An Old Fight

Most recently, the internecine squabbles within American conservatism have been summed up in the public debate between David French and Sohrab Ahmari over the role of government in promoting virtue. But the debate is an old one. Frank Meyer and Brent Bozell were having the same fight in the pages of National Review in the early 1960s: Should government be concerned with instilling virtue in the people, or is that a job best suited to the people themselves within the protections of liberty afforded by the state?

For the modern conservative movement, the answer has always been a muddle. Because post-war conservatism is the fusion of traditional conservatives and libertarian conservatives, there has been — and always will be — disagreement over where to draw the line between individual freedom and state-sponsored virtue. The two sides have more in common with each other than not, but there will never be a complete synthesis of the views.

So when Hawley talks of a federal judiciary that will produce a specific outcome on an issue of law and virtue, he is wading into an old fight. Which is more important, a neutral institution, or a virtuous result? The Democrats long ago decided that the latter (for their odd definition of “virtue”) trumps the former, but Republicans in Congress have been reluctant to do the same.

The part of the conservative movement that prizes liberty first and foremost believes liberty is best preserved through neutral institutions of government, including courts. For that reason, even as they hope for a conservative result from judges, Republicans have been reluctant to demand one.

The Vital Importance of an Independent Judiciary

From that point of view, Hawley’s stance is troubling. Republicans are the only major party to demand a truly independent judiciary — in Chief Justice John Roberts’s famous formulation: one that “calls balls and strikes.” Appointing and confirming judges with an originalist outlook makes certain results likely, but those results come from the neutral application of the law as written. This has been a conservative touchstone, a libertarian idea that even the traditionalist faction of the movement accepted.

Moving away from that agreement ruptures the conservative consensus. More importantly, it would, if more Republicans joined Hawley, leave the nation without a major party committed to the independence of the judiciary. That is no small matter.

An independent judiciary is a part of the separation of powers that maintains our liberty. If Congress can demand in advance that judges take certain positions on cases, the power of the judicial branch is diminished. It is only a small step from there to impeaching judges for political reasons. Once that happens, there will no longer be any question of judges applying neutral principles. Political will, not the rule of law, will prevail.

Troubling or Long Overdue?

That is a lot of philosophical argument in service of preserving one of the worst decisions the Supreme Court ever made. Roe v. Wade definitely ranks with Dred Scott v. Sandford, Plessy v. Ferguson, and Korematsu v. United States on the list of the most egregious mistakes ever made by the American judiciary. Poorly reasoned and poorly written, it was itself the triumph of political desires over good sense and longstanding law. Since inventing the right to abortion in 1973, the Supreme Court has been at least partly responsible for the deaths of more than 50 million unborn children in the United States.

So, in the face of such carnage, how much concern should we have for the independence of the judiciary? It is easy to imagine Abraham Lincoln demanding of his judicial nominees that they reject the precedent of Dred Scott, the 1857 case in which the Supreme Court proclaimed that black people, free or slave, could “claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

Republicans and many northern Democrats considered Chief Justice Taney’s Dred Scott decision as odious and rejected it immediately. Were they wrong to do so?

It is hard to argue that they were not in the right, and whether or not Lincoln pressed his nominees to choose a side, he picked men for the courts that aligned with his thinking on the matter. After a destructive war, Dred Scott was overturned by the Fourteenth Amendment in 1868. It was a decision so uncommonly bad that extraordinary means to overturn it was employed.

Is that the situation that confronts us now with Roe? That depends on how you feel about abortion. Even pro-life conservatives hold different levels of commitment to the cause. If it is one of the many views you hold, Hawley’s actions might seem troubling. If it is one of the main issues that inform your political outlook, you may find yourself saying, “Yes, it’s about time.”

Why We Cannot Give in to Power

People in every age have found their own time more important than others, and we are no different. The abortion crisis is real, and Roe was, indeed, wrong from the day it was decided. Two generations of conservative justices have chipped away at it, but the main holding of Roe remains intact. Constitutional amendments on the subject, frequently proposed in the ‘70s and early ‘80s, failed so often they are hardly even mentioned anymore. It feels like a crisis, one that demands bold action.

This will incline many conservatives to take the traditional side and ignore the libertarian faction’s protests. But our movement is not a mere coalition. Modern American conservatism is the overlapping of these two strains of thought and the knowledge that traditional virtue and classical liberty support and depend on each other. Ignoring one imperils the other.

It would be easy to say, as some commenters already do, that there is no principle in politics, only power. But adopting that course for our side, while it may deliver some quick and well-deserved victories, will threaten the whole project of limited government.

If Republicans demand obedience from judges on one issue, Democrats will demand it on every issue. Where will we turn then, when the opposition is in power and their judges follow political instructions to destroy the traditional value system that Hawley, like all conservatives, wants to preserve?

This explicit anti-Roe litmus test may, in the end, be the only way forward for a movement that has been betrayed time and again by the judges it thought would save it. But before that point, we must redouble our efforts to win within the system, to preserve public virtue through limited government, not despite it.

Kyle Sammin is a lawyer from Pennsylvania, a senior contributor to The Federalist, and the co-host of the Conservative Minds podcast. Read some of his other writing at his website, or follow him on Twitter at @KyleSammin.

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