This will be my last blog until a few days after the election, when I will return with the next in the series on Lee v. Tam. (Go VOTE!)
Neil Patrick Harris sings a wonderful, lambasting yet humanizing song, created by Frozen songwriters Kristen Anderson-Lopez and Robert Lopez, about the mixed emotions of House Speaker Paul Ryan. NPH’s Ryan promises to “be there to pick up the pieces” when his Republican Party returns after the nightmare of Donald Trump. (“Now that guy is calling me a wussy/ I wish I could grab him by the lapels.”) The song is a treasure and has gotten a lot of play, including on This American Life. Unfortunately, the song misunderstands an important distinction in constitutional interpretation.
This distinction – between a court’s failure to find a constitutional right with which to nullify a law and the court’s nullification of a law based on a constitutional right- is conflated frequently by the media. Conflations of this nature lead to an overemphasis on a case’s result and unnecessary cynicism about the politicization of the Supreme Court. This is not to say that results never matter and that Justices pay attention only to reasoning when deciding cases. However, public misunderstanding about the posture in which a court confronts a case leads to judging a case only by the results and not its reasoning.
In the song, NPH sings pointedly about how once Donald Trump is out of the picture, Paul Ryan’s own (still not great) vision can become a reality, including privatizing social security and dismantling social security. And then Paul Ryan sings about the conservative ideal for constitutional law. Here’s the lyric: “Gay marriage, abortion, and gun control are all unconstitutional.”
And here’s the problem – although admittedly, many conservatives might want these ultimate outcomes on the law. When conservative opinions rule against marriage equality or restrict abortion access, the rationale is that the Constitution does NOT have a provision that allows judges to invalidate democratically elected laws banning abortion or same-sex marriage. The Court is not declaring gay marriage and abortion unconstitutional. Instead, the Supreme Court uses a controversial doctrine called “substantive due process” (controversial because there is no Constitutional text providing for substantive due process and many think the right should be limited to procedural due process) to overturn anti marriage equality laws and laws restricting abortion. (I actually think the Supreme Court’s decision in Obergefell would have been more intellectually satisfying if it had overturned same-sex marriage bans based on the explicit text of the Equal Protection Clause in the Fourteenth Amendment.) But when conservative judicial opinions result in invalidating gun control laws, the controversial rationale is that the Constitution explicitly provides a Second Amendment right to overturn democratically elected gun control laws. Gun control IS declared unconstitutional. (The controversy here is over whether the Second Amendment creates an individual right to bear arms and how far that right extends as against reasonable gun control regulations.)
This means abortion and marriage equality are not situated similarly to gun control. The song lyric is incorrect. A court cannot, for example, declare abortion itself unconstitutional. The most a court could do it leave the issue for the legislature to decide. Same with marriage equality. A court can never say gay marriage itself is unconstitutional and cannot happen. In the gun control arena, however, a court is overriding legislative prerogative.
The difference is the default. When a court refuses to find a constitutional right, the issue is left to the legislature to decide the issue as it wishes. When a court finds a constitutional right, a law is declared invalid. The issue is then in the hands of the court. The default has changed.
A judge (or politician) who would find Fourteenth Amendment rights to overturn same-sex marriage bans and abortion bans, but not a Second Amendment to overturn gun control regulations (or vice versa- uphold same-sex marriage bans and abortion bans but overturn gun control laws) isn’t necessarily being inconsistent. That judge or politician does, however, need a good rationale for explaining his or her stances and why they correlate precisely with his or her political views.
When constitutional law is communicated to the public in pop culture, the distinction between not finding a constitutional right and using a constitutional right to overturn law is often conflated. Before Obergefell, I saw many headlines about lower court decisions reading something like “Court Rules Against Same-Sex Marriage.” This is inaccurate. Instead, the court was saying there is no constitutional right to marriage equality, not that any judge personally would vote against marriage equality once the issue is left to the legislature. Unfortunately, these go together all too often, but not always, and even when a judge’s own opinions and her rulings correlate it doesn’t necessarily mean a judge is being unprincipled.
Public appraisal of the courts, and especially the Supreme Court, depends on a properly understood description of what courts are actually doing in each case.
Reader’s note: A reader noted that the song would be accurate if NPH’s Ryan were pushing for constitutional amendments banning abortion and marriage equality. This seems unlikely, as people propose overruling Roe, but don’t suggest taking the issue entirely away from the legislature. There have been state proposals to ban marriage equality via state constitutional amendment, but those are now unconstitutional anyway.
My own favorite line: “No spending tastes as good as a balanced budget feels.”