In an age of high Adversarial Legalism, political science experts have developed multiple arguments for and against the reality and effectiveness of “judicial policymaking.” These arguments have manifested into two diametrically opposed and often idealistic outlooks: the Constrained Court View (CCV) and the Dynamic Court View (DCV). According to the CCV, the United States Judiciary cannot produce significant social reform because it is almost always somehow constrained, be it by Constitutional and precedential legal statutes; by its fragmented authority across federal, state and local courts; by the powers and coercions of the elected branches of government; or by the dominant values and beliefs of the time. According to the DCV, these constraints are frequently weak enough to be bypassed and the CCV is blind to the multiplicity of means and methods by which the court system is not only capable of, but also required to engage in policymaking. Ultimately, the truth of judicial policymaking lies in a synthetic middle ground between the CCV and DCV and depends upon one’s interpretation of the more opaque effects of court decisions.
Gonzales v. Carhart: Emotion Trumps Reason & Law
It is no secret that the issue of abortion-rights is highly politically charged in the U.S. With any social issue of such controversy, political players – including judges – may struggle to separate their professional integrity from their personal feelings when confronted with the issue at hand. The 2007 Supreme Court case, Gonzales v. Carhart, qualifies well for this phenomenon, because it deals with the most controversial of abortion-rights controversies: “partial-birth” abortion. In 2006, National Public Radio wrote: “‘Partial-birth’ is not a medical term. It’s a political one… first coined by the National Right to Life Committee (NRLC) in 1995…[to] foster a growing opposition to abortion.” Yet, Congress employed this term in Gonzales v. Carhart when it asked SCOTUS to do an unbiased judicial review. As stated by former Massachusetts Attorney General, Martha Coakley, Gonzales v. Carhart is ultimately a story of “emotion overcom[ing] reason and the law.”2 However, analysis of the court system reveals that such could only have happened under certain circumstances. On balance, the case illustrates the Dynamic Court View, suggesting the Supreme Court is particularly likely to be dynamic when the decision at hand impacts a highly contentious social issue about which elite opinion is relatively evenly divided.
In 2003, Congress created the Partial-Birth Abortion Ban Act to prohibit abortions in which, “the entire fetal head…or…any part of the fetal trunk past the navel is outside the body of the mother.”3 Congress claimed the Act was specifically meant to target the less common “Intact Dilation and Extraction” (Intact D&E) abortion procedure. Immediately after President Bush Jr. signed the Act into law, a group of abortionist-physicians, headed by Dr. LeRoy Carhart (a repeat player in pro-choice litigation), sued for unconstitutionality on two primary grounds: the Act fails to provide the necessary exception for a mother whose health depends on such a procedure, directly defying the health exception requirement established by the Supreme Court to protect Due Process in Stenberg v. Carhart; and the act’s language may be applied to the more common “Dilation and Evacuation” procedure as well as the Intact D&E procedure, making “most” late-term abortions illegal and thereby creating the very type of “undue burden” declared an unconstitutional violation of Due Process by the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey and Roe v. Wade.4, 5, 6
The ACLU, Planned Parenthood and the NAF joined Carhart, suing Congress with similar arguments. Congress – represented by Attorney General, Alberto Gonzales – argued that the Act is neither unconstitutionally vague nor imposing of undue burden, as it targets a specific procedure and includes Congressional findings used to conclude that the Intact D&E procedure is never medically necessary for a pregnant woman and thus requires no health exception. The Act was found unconstitutional by three U.S. Federal district courts and then by the Courts of Appeals for the 8th and 9th Circuits before Gonzales Petitioned the U.S. Supreme Court to review the ruling of the 8th Circuit Court, which was in favor of Dr. Carhart. In April 2007, the Roberts Court voted 5-4 against the lower courts, upholding the Act’s constitutionality.7,8,9
Through the Lens of the Constrained Court View
Even a CCV advocate would likely acknowledge that the Court demonstrated little doctrinal constraint Court in Gonzales v. Carhart. However, the Court’s majority – ever defensive of its statutory constraint – argued that it could not accuse the Ban Act of violating Due Process because it, “provide[s] doctors… a reasonable opportunity to know what is prohibited.”10 Furthermore, the Court argued that, per the “familiar principles of deference to Congressional fact finding,” Congress’ annulment of a health exception should be trusted to cause no undue burden.11 Here, the court seems to reference doctrinal constraint via precedent set by earlier decisions establishing standards of deference to Congress – a highly contested argument, weak in the face of the many precedents the Court seems to overlook in its decision.
Regarding constraints caused by the structure and organization of the Court, a more general CCV argument is that SCOTUS’ judicial power is limited by its passivity – because it cannot set its own docket, the Court has no say in which issues it may influence. Another potential internal institutional constraint is that the Court is only qualified to exercise constitutional jurisprudence and thus, when the need for separate areas of expertise appears in a case, the Court will be unsuited to provide appropriate remedies – which in this case may have resulted in the magnitude of deference given to Congress. The deference allotted to Congress is one of the most controversial elements of Gonzales v. Carhart and brings up the question of constraints on the Court by the elected branches of Government. Attorney, M. Katherine Burgess wrote in the University of Maryland Law Journal:
“The Gonzales Court failed to recognize that, according to the Congressional Record itself, the medical consensus Congress used to justify the lack of a health exception simply does not exist… the Court allowed Congress to create a law that ignores Court precedent and infringes on the power of the judicial branch as established in Marbury v. Madison [-Judicial Review]”12
Indeed, in the oral argument for the case, Attorney Priscilla Smith stated, unchallenged, that “the findings in [the Act] are simply unreasonable and not supported by evidence.”13 Burgess also wrote that the Court gave deference despite acknowledging both that this should be handled conservatively when Congress seeks to flip a precedential decision, and that Congress’ conclusion that there is a medical consensus on intact D&E is incorrect.14 This could point to adherence to Congressional coercion as a constraint on Judicial Review. In its opinion, the Court practically acknowledges this constraint, citing precedence: “the Court has given state and federal legislatures in other cases wide discretion to pass legislation in areas where this medical and scientific uncertainty exists.”15 On the topic of adherence, a final argument for external constraint is that judges make their decisions in alignment with the ideology of the official who appointed them, placing the true power in the hands of the appointer.
Finally, concerning cultural constraint: Gallup, Inc. polls taken between 2001-2010 from adults nationwide show a mean pro-choice rate of about 47% and a mean pro-life rate of about 44% – a fairly even split.16 However, Gallup’s website also states, “a large number of Americans who generally think abortion should be legal in all cases, nevertheless say they favor a ban on partial-birth abortion.”17 Gallup polls show a 57% disapproval rate of partial birth abortion in 2000, then 68% in 2003, then a whopping 75% in 2007; so, the case occurred during a steep incline of disapproval for partial-birth abortion.18,19,20, A potential CCV argument, then, is that the Court would have made their decision to uphold the Ban Act with the understanding that to do otherwise amidst such a disapproving public might result in resistance to its re-legalization that would threaten the Court’s authority: protests, physicians’ or clinics’ refusals to participate, violence against late-term abortionists or late-term abortion seekers; the possibilities go on.
Through the Lens of the Dynamic Court View
The lack of doctrinal constraint is very transparent in this case: The Court was to determine whether or not the Ban Act was a violation of the Fifth Amendment’s Due Process clause, which requires total reliance on the phrase, “due process,” practically demanding judicial policymaking.21 The two doctrines within the clause that the Court was asked to consider are equally nebulous to the Clause itself: “undue burden” being defined as any, “substantial obstacle in the path of a woman seeking an abortion,” and the “vagueness doctrine” requiring an interpretation of what is specific enough.22,23 A wealth of empirical evidence further shows dynamism vis-à-vis stare decisis: the very fact that the same Act was found unconstitutional by three federal district courts (Carhart v. Ashcroft (2003), Planned Parenthood Federation of America v. Ashcroft (2004), National Abortion Federation v. Ashcroft (2004)), and then two circuit courts, only to be declared constitutional by SCOTUS points to a force other than law at work in the High Court.24 Furthermore, the Court’s decision was a 5-4 vote, entirely aligned with the ideology of the Justices (a conservative majority vs. a liberal minority) with fervent dissents from the minority, implying highly variable interpretability of the doctrines in question.25 The Modern Law Review describes the case as a, “significant retreat from the protection of a woman’s reproductive choice established in Roe v Wade, Planned Parenthood v Casey, and Stenberg v Carhart,” echoing Martha Coakley’s argument that the case ignores, “decades of established legal precedent.”26,27 Such accusations are hardly surprising, as, in Stenberg v Carhart (2000), for example, the Court declared Nebraska’s partial-birth abortion ban unconstitutional specifically for failing to provide a health exception.28 What changed between the 2000 case and Gonzales? Sandra Day O’Connor, a Moderate Republican, female Justice with a history of leaning left in abortion-rights cases (Hodgson v. Minnesota, Planned Parenthood v. Casey) had been replaced by the more conservative, male Samuel Alito; again, pointing to ideology dictating Gonzales.29 Though the Court opinion in this case argues that it does not defy precedence because new circumstances arose regarding Congressional deference, four of the Court’s Justices dissented that, “the Court’s hostility to the right Roe and Casey secured is not concealed.”30,31 They risked the Court’s constrained guise to point out that the majority’s verdict was emotion-based.
The CCV argument regarding the passivity of the Court is easily dismissible when considering any case on abortion, because such a controversial issue comes with bores of cases provided by interest groups (i.e. Planned Parenthood, NARAL Pro-Choice America, Center for Reproductive Rights; National Right to Life, Pro-Life Action League). In fifty years, the Supreme Court has seen over forty reproductive rights cases, ranging from contraceptive laws (e.g. Griswold v. CT; Eisenstadt v. Baird) to abortion ads (Bigelow v. Virginia; Madsen v. Women’s Health Center, Inc.) to state and federal funding of abortions (Beal v. Doe, Harris v. McRae), to abortion procedures themselves – such as in this case.32,33 Even now, SCOTUS is handling a case about constraints on abortion clinics in Texas in Whole Women’s Health v. Hellerstedt.34 Considering that the federal judiciary receives such an abundance of abortion cases, it is reasonable to expect that – opposing the CCV argument of constitutional jurisprudence as a constraint – the justices are sufficiently educated on the subject to investigate related medical arguments. This is an especially appropriate expectation when, as reported by Justice Ginsburg in her dissent, “Congress arbitrarily relied upon the opinions of doctors who claimed to have no…relevant experience with surgical abortions, and disregarded the views of doctors who had significant and relevant experience with those procedures.”35 The majority themselves acknowledge the “medical uncertainty” surrounding Congress’ findings in their opinion but write this off with the statement that “medical uncertainty does not foreclose the exercise of legislative power.”36 Moreover, the argument for limiting constitutional jurisprudence might have more weight were it not muddled by contradictory actions by the Court in Roe and Gonzales; in the former, the Court seemed to adhere entirely to constitutional jurisprudence, stating in its opinion, “we need not resolve the difficult question of when life begins. When those trained in…medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary…is not in a position to speculate as to the answer”; yet in Gonzales, the court states, “by prohibiting [intact D&E], the Act expresses respect for the dignity of human life” – implying it no longer feels constrained in deciding when “life” begins.37,38 Moving forward, the CCV argument that Congress’ Judicial Review power is weak in the face of Congressional coercion is only effective if ignoring the numerous cases in which the Court has overturned Congress, beginning with Marbury v. Madison, and, according to the U.S. Govt. Publishing Office, occurring 157 times between that case and 1997 alone (e.g. Dred Scott v. Sandford (1857), US v. Eichman (1990)).39 Lastly, undermining the “constraint” of appointment power, Justices Stevens & Souter voted against the ideology of their conservative appointers in Gonzales.40 Not only was President Ford – who appointed Stevens – conservative; but he was also documented reporting his agreement with the Republican platform to outlaw abortion.41 Moreover, Justice Souter was appointed by President Bush Senior and then spent his entire SCOTUS career voting reliably with the Liberal Justices – he is a living counterargument against the authority of an appointer over a judge.42
One might equate the aforementioned Gallup statistics to a legitimate cultural constraint in Gonzales. However, strong evidence exists which challenges this idea: A 2000 poll on partial-birth abortion asked: “Would you vote for or against a law which would make it illegal to perform…a ‘partial-birth abortion,’ except in cases necessary to save the life of the mother?”43 Though dated, this poll brings up health exceptions, which many later polls fail to include. Whether some pollsters believed it implied or failed to consider it, other numerous polls show a majority of the public believes that late-term abortions should be legal when the mother’s life is threatened.44 In 2003, “Gallup probed Americans…[and] majorities continue to believe abortion should be allowed when the woman’s life is endangered (75%).”45 According to the DCV, the Supreme Court could simply have utilized the “American Creed-Grab Bag of Values” and overturned the Ban Act on the grounds of protecting the mother.
Broader Analysis: The Role of Elite Opinion
It is imperative when analyzing cultural constraint to look specifically at elite opinion in addition to public opinion, for the two do not always align. Elite opinion is particularly important to consider because Supreme Court adjudication at odds with elite opinion on a highly contentious issue may face backlash resulting in far more substantial and direct challenges to the coercive powers of the court and the court’s perceived significance, such as: Congressional override via new legislation that renders the court’s decision obsolete, and/or legal backlash by the ever-present multiplicity of pro-life interest groups seeking to undermine pro-choice court rulings. Existing evidence of instances in which the Court has adhered to elite opinion adds weight to this argument. Though it is hard to measure when the Court is truly swayed by, than coincidentally aligned with, elite opinion, the William and Mary Law School (WML) provides an effective marker: when Justices’ ideologies pivot from one case to another in the face of strong “elite” criticism. WML offers numerous examples of such occurrences, such as the Supreme Court’s 8-1 decision to allow schools to require students to salute the American flag in Minersville School District v. Gobitis (1940), followed by its 6-3 decision only three years later to directly overturn Gobitis in West Virginia State Board of Education v. Barnette. Five Justices seem to change their minds very quickly, and WML offers that it is no coincidence that, between the cases, “the earlier decision was heavily criticized by law journals, the press, and religious organizations. Thirty-one of thirty-nine law review pieces that discussed the decision did so critically.” Moreover, WML writes that, “newspapers and magazines accused the Court of violating constitutional rights and buckling under popular hysteria,” which implies that whether or not the Court was constrained by public opinion in Gobitis, opposing elite opinion quickly ruled its following decision.47 This suggests that the Court is most effectively constrained by united elite opinion, and most likely to be dynamic when elite opinion is split enough that the political cost will be equal, whatever the Court decides.
An efficient sample of elite opinion on Supreme Court cases may be drawn from the amicus curiae briefs submitted by interest groups and members of federal government in defense of the petitioners or the respondents.48 In Gonzales, there are four briefs in support of the petitioner (Gonzales): a social activist organization; a conservative interest group; a corporation-nonprofit organization and a coalition of organizations and activist groups from California. Their primary arguments are that Congress applied thorough scrutiny to the Intact D&E procedure and thus deserves deference, and that any constraint set in Stenberg or Roe should be ignored because these cases should be overturned. There are six briefs in favor of the respondent (Carhart): a professional association; a research institute; two coalitions of physicians backed by an international abortion-providing organization; a coalition of constitutional law professors and a coalition of statisticians. These parties argue that, while deference to the legislative branch is important, it should not encompass, “legislative enactments [that] burden fundamental constitutional rights,” as this is a challenge to the definition and significance of Judicial Review.49 What is most important to note about the amicus briefs is that both Congress and Carhart received substantial support from an array of organized interests, suggesting that elite opinion on the Ban Act was reasonably evenly divided during the time of the case.
Gonzales is a strong proponent of the DCV in that it is a story of judicial creed bypassing formal and informal constraints. However, a synthetic analysis of the Court’s relationship with elite opinion shows how the Gonzales Court was enabled to vote dynamically by particular circumstances. Because of the split in the elite opinion surrounding the case, the political costs for the Court were set to be equal whether they voted for or against the Partial-Birth Abortion Ban Act, allowing the Justices to vote according to their ideology. Ultimately, Gonzales demonstrates that the U.S. Judiciary is surely capable of dynamism but may also be subject to constraint.
1 Coakley, M. & Rudnick, C. (2007). Abortion and the Court; Emotion overcomes reason and law. The Patriot Ledger, ONE16.
2 Rovner, J. (2006). ‘Partial Birth Abortion:’ Separating Fact from Spin. National Public Radio. http://www.npr.org/2006/02/21/5168163/partial-birth-abortion-separating-fact-from-spin
3 Gonzales v. Carhart. (n.d.). Oyez. https://www.oyez.org/cases/2006/05-380
4 Gonzales – Oyez.
5 Coakley – The Patriot Ledger.
6 Supreme Court of the United States, Gonzales, Attorney General v. Carhart et al. (n.d.). Cornell University Law School Legal Information Institute. https://www.law.cornell.edu/supct/html/05-380.ZS.html
7 Gonzales – Oyez.
8 Coakley – The Patriot Ledger.
9 Supreme Court…Carhart et al. – Cornell Law
10 Gonzales v. Carhart. Justice Kennedy, Opinion of the Court. University Law School Legal Information Institute. https://www.law.cornell.edu/supct/html/05-380.ZO.html
11 Gonzales Oral Argument – Oyez.
12 Burgess, M. Katherine (2008). Gonzales v. Carhart: No Limits to What Congress May Now “Find.” University of Maryland Law Journal of Race, Religion, Gender and Class, 8(1), 327-328. http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1148&context=rrgc
13 Gonzales Oral Argument – Oyez.
14 Burgess – U Maryland Law Journal
15 Gonzales: Justice Kennedy, Opinion of the Court – Cornell Law.
16 Abortion and Birth Contro – Gallup (n.d.). Polling Report. http://www.pollingreport.com/abortion.htm
17 Saad, L. (2002). Public Opinion About Abortion – An In-Depth Review. Gallup. http://www.gallup.com/poll/9904/Public-Opinion-About-Abortion-InDepth-Review.aspx?g_source=women%27s%20health%20exception%20abortion&g_medium=search&g_campaign=tiles
18 Saad. Abortion – Gallup.
19 Saad, L. (2003). Americans Agree With Banning, “Partial-Birth Abortion.” Gallup. http://www.gallup.com/poll/9658/americans-agree-banning-partialbirth-abortion.aspx
20 Pew. On Religion and Public Life Survey. Pew Research Center. http://www.people-press.org/question-search/?qid=1689118&pid=51&ccid=51#top
21 Gonzales – Oyez.
22 Planned Parenthood of Southeastern Pennsylvania v. Casey. (n.d.). Oyez. https://www.oyez.org/cases/1991/91-744
23 Vagueness Doctrine. (n.d.). Cornell University Law School Legal Information Institute.
24 Gonzales: Justice Kennedy, Opinion of the Court – Cornell Law.
25 Gonzales – Oyez.
26 Gee, G. (2007). Regulating Abortion in the United States after Gonzales v. Carhart. The Modern Law Review, 70(6), 979-992. http://www.jstor.org.libproxy2.usc.edu/stable/4543187
27 Coakley – The Patriot Ledger.
28 Stenberg v. Carhart. (n.d.). Oyez. https://www.oyez.org/cases/1999/99-830
30 Gonzales – Oyez.
31 Gonzales Oral Argument – Oyez.
32 Index – Abortion Cases. (2016). End Roe. http://www.endroe.org/scdecisions.aspx
33 Pew. (2013). A History of Key Abortion Rulings of the U.S. Supreme Court. Pew Research Center. http://www.pewforum.org/2013/01/16/a-history-of-key-abortion-rulings-of-the-us-supreme-court/#roe
34 Whole Women’s Health v. Hellerstedt. (2016). SCOTUS Blog. http://www.scotusblog.com/case-files/cases/whole-womans-health-v-cole/
35 Ginsburg, J., Dissenting. (n.d.). Cornell University Law School Legal Information Institute. https://www.law.cornell.edu/supct/html/05-380.ZD.html
36 Gonzales: Justice Kennedy, Opinion of the Court – Cornell Law.
37 Roe v. Wade, 410 U.S. 113. (n.d.). Cornell University Law School Legal Information Institute. https://www.law.cornell.edu/supremecourt/text/410/113#writing-USSC_CR_0410_0113_ZO
38 Gonzales: Justice Kennedy, Opinion of the Court – Cornell Law.
39 Acts of Congress Held Unconstitutional In Whole or In Part by SCOTUS. (n.d.). U.S. Government Publishing Office. https://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-10.pdf
40 Gonzales – Oyez.
41 Ford, G. (1977). Public Papers of the Presidents of the United States: Gerald R. Ford, 1976-1977. Google Books. https://books.google.com/books?id=KYTVAwAAQBAJ&pg=PA2638&lpg=PA2638&dq=Gerald+Ford+I+think+abortion+is+wrong&source=bl&ots=e7cGtmztMg&sig=76gWekRWcBcoWBk2fnvqd5pESMg&hl=en&sa=X&ved=0ahUKEwjkgcXRpI_MAhWGKWMKHbqSDOIQ6AEILDAD#v=onepage&q=Gerald%20Ford%20I%20think%20abortion%20is%20wrong&f=false
42 Savage, D. (2009). Justice Souter: Liberal or Conservative? Los Angeles Times. http://articles.latimes.com/2009/may/04/nation/na-souter4
43 Abortion. (n.d.). Gallup. http://www.gallup.com/poll/1576/abortion.aspx
44 Abortion – Gallup.
45 Saad, L. (2003). Abortion Views Hold Steady Over Past Year. Gallup. http://www.gallup.com/poll/8521/abortion-views-hold-steady-over-past-year.aspx
46 Camarota, S. and Beck, R. (2002). Elite vs. Public Opinion: An Examination of Divergent Views on Immigration. Center for Immigration Studies. http://cis.org/ElitevsPublicOpinion-ImmigrationViews
47 Baum, L. (2010). Why The Supreme Court Cares About Elites, Not the American People. College of William and Mary Law School. http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2149&context=facpubs
48 Peterson, J.
49 U.S. Supreme Court Docket: Gonzales v. Carhart. (n.d.) Find Law. http://supreme.findlaw.com/supreme_court/docket/2006/november/05-380-gonzales-v-carhart.html
Garrison Hall is a senior Sociology student at the University of Southern California. He recently finished interning for Homeboy Industries’ Educational Services Department and before that worked as a research assistant for an American Studies & Ethnicity and Anthropology professor at USC. He hopes to continue working in social advocacy, both as a writer and “on the ground.”