Judicial Politics in Polarized Times

Thomas M. Keck

• Publisher: University of Chicago Press
• Year: 2014
• ISBN:
  9780226182551
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

When the Supreme Court upheld the Affordable Care Act, some saw the decision as a textbook example of neutral judicial decision making, noting that a Republican Chief Justice joined the Court's Democratic appointees to uphold most provisions of the ACA. Others characterized the decision as the latest example of partisan justice and cited the actions of a bloc of the Court's Republican appointees, who voted to strike down the statute in its entirety. Still others argued that the ACA's fate ultimately hinged not on the Court but on the outcome of the 2012 election. These interpretations reflect larger stories about judicial politics that have emerged in polarized America. Are judges neutral legal umpires, unaccountable partisan activists, or political actors whose decisions conform to—rather than challenge—the democratic will?Drawing on a sweeping survey of litigation on abortion, affirmative action, gay rights, and gun rights across the Clinton, Bush, and Obama eras, Thomas M. Keck argues that, while each of these stories captures part of the significance of judicial politics in polarized times, each is also misleading. Despite judges' claims, actual legal decisions are not the politically neutral products of disembodied legal texts. But neither are judges "tyrants in robes, " undermining democratic values by imposing their own preferences. Just as often, judges and the public seem to be pushing in the same direction. As for the argument that the courts are powerless institutions, Keck shows that their decisions have profound political effects. And, while advocates on both the left and right engage constantly in litigation to achieve their ends, neither side has consistently won. Ultimately, Keck argues, judges respond not simply as umpires, activists, or political actors, but in light of distinctive judicial values and practices.

PART I

Rights on the Left, and Rights on the Right

CHAPTER ONE

Rights on the Left

The mid-twentieth-century effort by the NAACP Legal Defense and Education Fund to use the courts to advance the cause of civil rights has long been the chief template for litigation in pursuit of policy change. The NAACP’s lawyers found litigation to be a potentially fruitful avenue in three distinct circumstances. When southern legislatures and school boards adopted new and innovative policies to curtail African American rights, the NAACP regularly called on the federal courts to enjoin such policies.1 Of course, many discriminatory policies in the South were of long standing (rather than newly enacted), and the NAACP regularly called on the federal courts to invalidate these policies as well.2 Third and finally, even where the organization was engaged primarily in democratic politics, its litigators regularly called on the federal courts to enable these efforts by preventing state governments from enforcing laws that hindered the key mobilization and protest tactics engaged in by the organization and its allies.3

More recently, LGBT rights advocates have turned to courts in similar circumstances. When red-state legislatures have enacted new statutory or constitutional restrictions on partnership or parenting rights, movement lawyers have called on courts to preserve the policy status quo by enjoining these new laws.4 When the timing seemed right, the advocates likewise called on courts to dismantle existing rights-restrictive policies—particularly criminal bans on consensual sodomy and discriminatory marriage laws—some of which had been on the books for decades.5 The timing of their category 1 suits was dictated by the enactment of new legislation, but with these category 2 suits, the advocates did their best to wait until the combination of public support and legal precedent marked out a clear path to victory. Finally, even where they were pursuing their policy aims primarily via legislative channels, they sometimes faced legal barriers that were best hurdled with some assistance from courts.6

On both the left and the right, and across a broad range of issues, policy advocates have continued to appeal to courts in each of these three scenarios: to preserve the policy status quo by enjoining new and unwanted policies, to disrupt the policy status quo by dismantling existing policies, and to enable democratic politics by clearing the channels of political change. In this chapter and the next, I survey a range of such examples drawn from the universe of culture war litigation during the Bill Clinton, George W. Bush, and Barack Obama presidencies. I focus here on the policy goals sought by left-liberal advocates in court, the legal arguments they crafted in pursuit of those goals, and the judicial holdings that came in response to these arguments. In chapter 2, I canvas similar ground for suits initiated by conservative advocates. In the second half of the book, I turn my attention from the advocates to the judges, examining the partisan dynamics that have influenced the judicial responses to the lawsuits described in part 1, the degree to which those responses have been consistent with the democratic will, and the impact of those responses on subsequent patterns of policy development and political conflict.

Using Courts as Veto Points

On both the left and the right, legislative losers turn to the courts as a matter of course. Day in and day out, they call on judges to preserve the policy status quo by enjoining new policies that the rights advocates had been unable to block in the legislative arena. Judges usually reject these calls, but on the occasions when they heed them, they provide advocates with a veto point that can have consequential policy effects. Indeed, as Gordon Silverstein has noted, this sort of “blocking function” has long been “the courts’ primary power” (2009, 30–33).

Consider the case of abortion regulation. During the Clinton era, no antiabortion legislation could pass at the federal level (because it would be vetoed by President Clinton), but there was fairly widespread legislative activity in the states. Most of this new legislation represented state efforts to copy (and incrementally expand on) the Pennsylvania abortion restrictions that the Supreme Court had upheld in its June 1992 decision in Planned Parenthood v. Casey. In the mid-1990s, however, abortion opponents opened a new legislative front whose constitutional status was uncertain, with more than half the state legislatures voting to ban so-called partial-birth abortion. During George W. Bush’s first term, Congress enacted a federal ban on the procedure as well. During Bush’s second term and Obama’s first, state legislatures enacted an expanded range of abortion regulations that went beyond those upheld in Casey, with a few of them once again experimenting with outright abortion bans. Virtually all of these new statutes sparked what I have characterized as category 1 litigation.

Blocking criminal bans on abortion procedures

State legislatures have only rarely tried to enact the sort of sweeping abortion bans that the Supreme Court struck down in Roe v. Wade (1973), but when they have done so, the federal courts have prevented these laws from taking effect. The year before the Court reaffirmed Roe in Casey, both Louisiana and Utah had banned abortion except in cases of rape, incest, severe fetal deformity, or severe threats to the pregnant woman’s health. Lawyers with the Center for Reproductive Law and Policy (CRLP) filed immediate constitutional challenges to each of these laws, and the federal courts eventually enjoined them both.7 In Casey’s wake, state legislatures refrained from enacting such clearly unconstitutional abortion bans for fourteen years, until South Dakota sought to push the constitutional envelope in 2006. The statute’s proponents were hoping to provoke a lawsuit that would provide a vehicle for SCOTUS to reconsider Roe, but abortion rights advocates foiled this strategy by launching an initiative campaign that successfully repealed the law in November 2006. If the initiative had failed, the abortion rights advocates would then have litigated the issue, and the federal courts would surely have invalidated this law as well.

Meanwhile, abortion opponents had begun persuading state legislatures to enact a new set of criminal bans on a particularly controversial late-term abortion procedure that they dubbed “partial-birth abortion.” The procedure, medically known as “dilation and extraction” (D&X), involved the partial delivery of a living fetus prior to the completion of the abortion. The first ban on this procedure was enacted by Ohio in 1995, and federal judges quickly divided over whether these laws were consistent with Casey. A divided Sixth Circuit panel struck down the Ohio law in 1997, but the year after that, a divided Fourth Circuit panel went the other way, lifting an injunction against Virginia’s law.8 In September 1999, an Eighth Circuit panel managed unanimity in three companion cases striking down the Nebraska, Arkansas, and Iowa bans, but the following month, an en banc Seventh Circuit panel split 5–4 in upholding the Illinois and Wisconsin bans.9 Collectively, these decisions focused on two potential constitutional defects with the state bans on partial-birth abortions. First, the statutes were sometimes drafted in such a way as to apparently restrict not just the controversial D&X procedure, but also an alternative procedure known as “dilation and evacuation” (D&E). The D&E procedure is the most common method for performing second-trimester abortions, and providers argued that whether intended or not, the statutory bans on this procedure imposed an undue burden on many women seeking to terminate a pregnancy prior to viability. In addition, many of the statutes lacked an adequate exception for situations in which a late-term abortion was necessary to protect maternal health, which abortion providers identified as a second and independent ground for striking them down.

The Seventh Circuit decision is particularly noteworthy because Circuit Judge Frank Easterbrook spelled out a line of argument that would be adopted by SCOTUS some eight years later, and because his colleague Richard Posner responded to this argument with a scathing dissent. Judge Easterbrook rejected facial challenges to the Illinois and Wisconsin laws, but enjoined both states from applying those statutes too broadly and outlined several possible narrowing constructions that the state courts might legitimately adopt. (Easterbrook also held that there was no per se constitutional requirement for all abortion regulations to include health exceptions.) In dissent, Posner observed that “[c]ompromise holds seductive allure for a court faced with a hot issue,” but objected that “[t]he court’s decision is not a real compromise. It leaves intact the core of the statutory prohibitions, which unlawfully burden the right of abortion.” Remarking on “the peculiar and questionable character of these statutes,” Posner argued that “[i]f any fetal lives are saved . . . , it will only be by scaring physicians away from performing any late-term abortions, an effect particularly likely in Wisconsin, whose statute imposes a punishment of life imprisonment for its violation.” The recent wave of partial-birth abortion bans, Posner continued, “does not exhibit the legislative process at its best, whatever one thinks of abortion rights. Whipped up by activists who wanted to dramatize the ugliness of abortions and deter physicians from performing them, the public support for the laws was also based . . . on sheer ignorance of the medical realities of late-term abortion.” These statutes, Posner concluded, “can fairly be described as irrational.” They “are not concerned with saving fetuses, with protecting fetuses from a particularly cruel death, with protecting the health of women, with protecting viable fetuses, or with increasing the Wisconsin population (as intimated, surely not seriously, by Wisconsin’s counsel). They are concerned with making a statement in an ongoing war for public opinion. . . . The statement is that fetal life is more valuable than women’s health.”10

Faced with this conflict among (and within) the circuits, the Supreme Court granted certiorari in the Nebraska case in January 2000. The plaintiff in this case was Dr. Leroy Carhart, one of a small number of doctors nationwide who regularly performed late-term abortions. Representing Dr. Carhart, CRLP Litigation Director Simon Heller argued that for certain abortions conducted after fifteen weeks of pregnancy, the D&X procedure was the safest method available. By banning this procedure with no exception for maternal health, the state was forcing women to undergo a greater degree of medical risk, with no attendant benefit for either themselves or their fetuses. The district court, the Eighth Circuit, and the Clinton administration all endorsed this line of argument, with the administration also objecting that Nebraska’s statutory definition of partial-birth abortion was so broad as to cover the conventional D&E procedure and perhaps the even more common suction curettage procedure in some instances.11

In June 2000, a bare five-justice majority sided with Dr. Carhart and the Clinton administration, with Justice Stephen Breyer holding that the Nebraska statute was unconstitutional both because the operative definition of the banned procedure appeared to include the widespread D&E method and because the ban lacked an exception for maternal health, thus compelling some doctors to use an alternative procedure that (in their judgment, under certain circumstances) posed a greater risk of injury to the pregnant woman.12 Justice Sandra Day O’Connor wrote separately to emphasize that if a state carefully limited its ban to the D&X method and provided an adequate health exception, such a statute would be constitutional under Casey.

The most widely noted aspect of the decision, however, was Justice Anthony Kennedy’s dissenting opinion. The case represented the Court’s first direct engagement with the abortion issue since Casey, and during that time, Clinton’s replacement of Justice Byron White with Ruth Bader Ginsburg had appeared to increase the Court’s pro-Roe bloc from five justices to six. (President Clinton had also replaced Roe’s author, Harry Blackmun, with Stephen Breyer, but that appointment had no effect on the Court’s balance of power in abortion cases.) But by abandoning his colleagues from the Casey decision, Kennedy rendered the Court once again divided by a single vote. Moreover, his opinion opened with a lengthy and graphic description of the abortion procedure at issue and ended by noting that “many decent and civilized people find [it] so abhorrent as to be among the most serious of crimes against human life.”13 Unlike his fellow dissenters, Kennedy did not call Casey into question, and there was no reason to suppose that he had changed his mind on the merits of that decision.14 Still, the tone of his opinion left abortion rights advocates uneasy (Greenhouse 2000b, A1).

Despite these fears for the future, the most immediate impact of Stenberg v. Carhart (Carhart I) (2000) was a series of decisions enjoining the state partial-birth bans that had so far taken effect.15 A secondary impact of the decision was to prompt several state legislatures to modify their existing bans in an effort to satisfy judicial scrutiny. These legislative efforts sparked yet further litigation. Ohio was the first state to revise its law, doing so shortly before Carhart I came down (but three years after Ohio’s first partial-birth ban had been invalidated). Federal District Judge Walter Herbert Rice issued a preliminary injunction in September 2000, holding that the revised statute still lacked a constitutionally adequate health exception—as Carhart I by that point required—but in December 2003, a divided Sixth Circuit panel reversed.16 In doing so, the appellate panel endorsed the Bush administration’s judgment that the statute’s health exception was constitutionally adequate after all.17 The administration’s lawyers were particularly concerned with this issue in 2002 because they were then in the midst of seeking to enact a federal partial-birth abortion ban that also lacked a robust exception for maternal health. In 2003 and 2004, three other states tried modifying their partial-birth bans to satisfy the Court’s constitutional scrutiny. Utah added a health exception to its existing ban. Virginia enacted a law closely modeled on the 2003 federal ban, providing a more careful definition of the banned procedure than Virginia’s prior law, but still lacking a health exception. And Michigan declared any partially delivered fetus to be “a legally born person for all purposes under the law.” The Michigan statute subjected doctors to civil and criminal liability for aborting any such partially delivered fetus, except in cases where they acted to “save the life of the mother” or to “avert an imminent threat to [her] physical health,” and even there required doctors to make “every reasonable effort . . . to preserve the life of” the fetus. Federal courts enjoined all three of these statutes, though two of these decisions were reversed after SCOTUS revised its assessment of partial-birth bans in Gonzales v. Carhart (Carhart II) (2007).18

During President Obama’s first term, with the battle over partial-birth bans having run its course, abortion opponents opened yet another legislative front, with legislatures in nine states enacting statutory bans on all abortions performed after twenty weeks’ gestation, on the (disputed) grounds that this was the point at which fetuses developed the capacity to feel pain. Texas followed suit in 2013, following a widely noted state legislative filibuster that delayed enactment of the law for several weeks. Two additional states pushed the envelope even further that year, with Arkansas banning abortion after twelve weeks’ gestation and North Dakota doing so after a fetal heartbeat is detected, typically around six weeks’ gestation. In response, the ...