The Supreme Court Recaptures the Constitution and Returns to American Greatness

For fans of the rule of law and constitutional government, this has been the best Supreme Court term in memory. Our highest bench is now graced by five justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—who have the rare combination of courage and modesty to say what the law is, and not what they think it should be, and to resist what demagogues demand.  

This combination of judicial virtues on our highest court has been a long time coming, and, in the sudden manner in which so much has come together so quickly, dazzling. The Progressives, who thought it was the job of the Supreme Court to implement their preferred social programs that often failed to pass legislative muster are understandably irked, but the Court, guided by the maxim specified in Federalist 78 that judges are to exercise judgment, and not will, has lately splendidly manifested the core principle famously championed by Antonin Scalia, that the best way to judge is for the Court to adhere to the original understanding of the Constitution, and not to seek to change it to fit the purported needs of the times. 

The most prominent example of the work of this newly powerful conservative court majority is, of course, Dobbs v. Jackson Women’s Health Organization, the decision that overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), two cases that erroneously and egregiously manufactured a constitutional right to terminate pregnancies before fetal viability. For almost 50 years, conservatives have lamented Roe and its progeny, but even those of us who were convinced of its manifest error, recognizing its influential supporters in the media, the academy, and the federal bureaucracy, thought Roe would endure.

We were wrong. We were, it now appears, of insufficient faith. 

There is much merit in the enthusiastic accolade of my former student, Michael Paulsen, who says of Dobbs that it “may be the most important, magnificent, rightly decided Supreme Court case of all time. It is restorative of constitutional principle. It upholds the values of representative, democratic self-government, and the rule of law, at the same time that it supports the protection of fundamental human rights.”

The most important fundamental human right Paulsen refers to, of course, is the fetus’ right to life, but he also recognizes that in supporting the right of the American people to have legislatures—not courts—decide law and policy, another fundamental human right has been affirmed. I’ve never been prouder of a pupil. 

Dobbs repudiates the several decades’ old dominant legal academic theory of the Constitution which denies there is a discernable governing constitutional intent and claims that it is the job of justices to remake constitutional law to meet the needs of the times. In other words, Dobbs reaffirms that law is to be made by legislatures—not judges—and that the job of justices is simply to rein in errant legislative and executive actors (and lower courts) who fail to follow clear constitutional law dictates.  

In 1994, disturbed by Planned Parenthood v. Caseythe 1992 decision that entrenched Roe, and Lee v. Weisman, the decision that same year that forbade nonsectarian school-sponsored prayer at a Rhode Island Middle School graduation, I wrote my only book published by a popular press, Recapturing the Constitution: Race, Religion, and Abortion Reconsidered. It was one of several dozen such volumes lamenting “living Constitution” jurisprudence and urging the Court to return to the original constitutional understanding. 

I argued in Recapturing that in these three key areas of interpretation (race, religion, and abortion) the Court should (following the wisdom of Clarence Thomas and Antonin Scalia, among others) 1) declare that the Constitution says nothing about abortion, and the matter should be returned to the states; 2) recognize that the original constitutional scheme privileges Judeo-Christian piety over nonreligion; and finally, 3) renew the understanding that the Constitution is colorblind, and does not permit the state, local, or federal governments to confer benefits or discriminate based on the race of individuals or groups.   

It’s taken 49 years to reject Roe, and we now also stand on the cusp of realizing the two other important achievements conservative legal scholars have sought over the years.

This term’s religion cases brought us closer to reaffirming John Adams’ observation that our Constitution was fit only for a moral and religious people, since without an understanding that morality follows Divine dictates, arbitrary rule or tyranny follows. In one of those cases, Carson v. Makin, by a vote of 6-3 the Court invalidated a Maine tuition program, forbidding the state from barring religious schools from receiving public grants available to other private schools. In another, Kennedy v. Bremerton School District, by the same 6-3 vote, the Court ruled that there was no establishment clause violation by a football coach wrongly fired after leading postgame prayers on the 50-yard line.

And, indeed, almost perfecting my desired trifecta of constitutional jurisprudence, this term the Court granted certiorari in the Harvard admissions case, which offers the justices an opportunity to condemn counting by race definitively.

There were other wonderful decisions this term—for example, one strongly reaffirming the Second Amendment right to bear arms, and another strongly reining in an out-of-control EPA that sought to impose constitutionally suspect fossil fuel restrictions without proper congressional authorization. This last was an impressive blow against the federal Leviathan.

All of this has happened, at this moment, not only because of the courage and wisdom of a newly active conservative majority of justices, but also because of the boldness and commonsense audacity of one man, Donald Trump, who appointed Justices Gorsuch, Kavanaugh, and Barrett, without whose views this return to sensible constitutionalism would not have occurred.

Almost to a person, the legal academy regarded Donald Trump as a reality-TV semi-buffoon, but a few of us recognized that Trump’s admiration for Clarence Thomas and Antonin Scalia was genuine, and when he turned to Leonard Leo, the executive director of the Federalist Society for Law and Public Policy for advice in picking justices, our support for Trump was vindicated. 

This term, then, is a great victory for right-to-life advocates such as Clarke Forsythe of Americans United for Life, who have been fighting Roe since 1973. But it is also a signal victory for the Federalist Society, founded in 1982 in response to cases such as Roe where the Court clearly abandoned the two core principles of the Constitution: federalism (giving primary law-making authority to the states) and separation of powers (forbidding the judiciary from legislating). The Federalist Society, essentially a discussion forum for scholars, lawyers, and law students, founded with the influence of Justice Scalia and by at least one of his distinguished former clerks, Steven Calabresi, became the most successful law student and lawyer organization of the modern era. Once it gained the ear of Donald Trump, it had become a potent political force. Ideas do indeed have consequences.  

This wonderful website celebrates American Greatness, which, for me includes the wisdom of our founders that there can be no order without law, no law without morality, and no morality without religion. The Supreme Court’s October 2021 term, just ended, has brought us closer to implementing this maxim than we have been in two generations. 

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About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.

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