Arriving hot on the heels of major decisions on gun rights and religious liberty, the U.S. Supreme Court in Dobbs v. Jackson embarked on a fundamental change in how the Court decides whether legislation is constitutional, further confirming the new approach in West Virginia v. Environmental Protection Agency on Thursday. The current Court is finally restoring a recognition that its main area of authority and responsibility is over the processes by which laws are made, not the consequences and advisability of those laws.
The Court, with increasing regularity until just recently, has often judged laws based on whether they accord with the justices’ opinions of their results, as opposed to whether those are properly authorized under the Constitution. Often justices will use constitutional premises to justify laws they like for their consequences, as in the claim that there is a right to privacy to be found in “emanations” from “penumbras” of rights recognized in the Constitution, as Justice William O. Douglas famously argued in the Griswold v. Connecticut decision in 1965.
This reasoning seldom fools anybody, and that is why people commonly refer to judges as liberal or conservative: they are known to be legislating from the bench.
This approach reflects a philosophical position called consequentialism, which holds that we should judge the morality of any action based on its results. If an action has good consequences, it is morally good. The opposing point of view, deontological ethics, finds the rightness of conduct in the character of the action (or sometimes the actor) rather than its outcomes. Different people fall on different places in this continuum, and individuals often change their reasoning about moral issues at different times. So it is with courts and lawmakers in making their judgments.
Joe Biden exemplified the consequentialist position in his comments on the Dobbs decision last Friday. “Now with Roe gone, let’s be very clear. The health and life of women in this nation are now at risk,” Biden said.
Regardless of whether Biden is correct in his assertion about the likely consequences of Dobbs, consideration of those consequences is outside the proper purview of the Supreme Court. Under our Constitution, consequentialism is the province of Congress, not the Court. It is the job of Congress to figure out what the country needs in fulfilling the government’s duty to “promote the general welfare.” Congress is the place where that must be debated, and the Constitution itself places limits on the legislature’s powers.
That is central to the way the U.S. government was designed to operate: each branch has veto power over actions by the federal government. Under the Constitution, the federal government is not to be allowed to do anything unless all three branches agree that the proposed law is in accord with the Constitution.
Thus, soon after the ratification of the document, the Supreme Court asserted its authority to interpret whether federal laws were justified under the Constitution. The president likewise was given this authority—and more importantly, the responsibility—to halt unconstitutional actions by Congress, made explicit in the existence of the presidential veto.
If the federal government follows the Constitution in both word and spirit, most government authority is left to the states and the people (Article 1, Sections 8 and 9 and Bill of Rights, especially Amendments 9 and 10). The states are the “laboratories of democracy” in which laws can be tested and their consequences examined, always under the power of the people and their state governments. (Whether the states also have the authority to judge the constitutionality of national laws was not given clear protection by the Constitution and has long been derided as nullification.)
Unfortunately, courts across the nation—including the Supreme Court—have regularly fretted that plainly unconstitutional laws could have consequences that the judges and justices considered beneficial, and vice versa. Over the decades, then, the Supreme Court increasingly used its veto power against state laws in particular, as in Roe, to substitute the justices’ will for that of the people—presuming to protect the people from themselves. Using decisions on constitutionality to take power away from the states and the people turns the Constitution on its head, giving the national government ultimate power.
Sending abortion back to the states is a return to constitutional government on this issue—a reform long-needed even if it means some people will not get what they want.
The Court has made the end of consequentialism equally explicit in its decision about the EPA’s discretionary power. “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,” the ruling states. The justices go on to say, however, “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
Well beyond the issue of abortion, the recent decisions by the Supremes mark a move toward the end of consequentialism on the Court. As such, they mark a new beginning of constitutionalism and the protection of the rights of the people of the United States.
The Court’s decisions of this term have been that consequential. Welcome back, veto power. Welcome back, rule of law. Welcome back, America.