Akhil Amar Dismantles The Flawed Dissents in WWH v. Jackson

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After Whole Woman’s Health v. Jackson, I wrote several posts criticizing the dissents from Chief Justice Roberts and Justice Sotomayor. First, I explained that these jurists embraced judicial supremacy, and conflated Marbury v. Madison with Cooper v. Aaron. Second, Justice Sotomayor messed up the constitutional history leading the Civil War: Lincoln opposed Dred Scott, because he rejected the myth of judicial supremacy. Ed Whelan made similar observations in posts titled, “Sotomayor’s ‘Analogous Sentiments’” and “John Roberts vs. John Roberts on Marbury and Judicial Supremacy.”

Recently, Ed joined Akhil Amar’s podcastAmarica’s Constitution. I encourage you to listen to the entire session. I’ve used Otter to transcribe it. Here are some (slightly cleaned up) excerpts.

First, Amar said that WWH v. Jackson did not represent any sort of assault on the courts. Rather, the case was far more narrow. He specifically called out Roberts and Sotomayor:

What was at stake here is not, with all due respect to Justice Sotomayor or to Chief Justice Roberts, any assault on the basic ability, right and the duty of court in proper cases to protect individual rights, with opinions that define the court’s understanding of those of those rights. That wasn’t an issue today, although some, I think, overheated rhetoric, in Justice Sotomayor’s opinion, and frankly, in the Chief’s opinion, might suggest that, but that’s actually not what’s at issue, as I understand it.

Second, Amar explains how the Chief Justice and Justice Sotomayor misread Marbury.

And what does Marbury v. Madison really mean? Marbury got invoked today by the United States Supreme Court. They don’t actually cite Marbury v. Madison in every single case. So they ratcheted up the stakes today, they meaning John Roberts and Sonia Sotomayor, and this is what I teach Marbury vs. Madison isn’t just ConLaw, it’s FedCourts, you know, 101, and this is what I was hired actually at the law school to teach so so I want to actually go through it with just a little bit of care here. Here’s what Marbury does not say, quote, “The Supreme Court is the ultimate interpret the Constitution” unquote. It doesn’t say that at all. Our audience will put the will put the case up on our website, so they can do a word search, they will not find that they will find if they go online, the Supreme Court at least half a dozen times in the 20th and 21st century, citing Marbury for that proposition, but never with a page cite. The Supreme Court, the ultimate interpreter of the Constitution. Marbury actually didn’t say that. It actually didn’t say much at all about the Supreme Court as such. It actually talked about courts in General, the judicial department which includes, at a minimum, all federal courts, maybe state courts as well, which which Ed invoked.

Amar is 100% correct. This mythical account of judicial supremacy comes from Cooper v. Aaron, and not from Marbury v. Madison. I explain this history in my article, The Irrepressible Myth of Cooper v. Aaron

Third, Amar acknowledges that S.B. 8 is inconsistent with Roe and Casey.

One of the things that really set Justice Sotomayor’s nose out of joint and the Chief Justice’s nose out of joint. [Nose out of joint refers to someone who is angry or annoyed]. And Justice Sotomayor’s opinion was joined by Justices Breyer and Kagan and together that added up to four for those of you who are counting is that this Texas, fetal heartbeat law is pretty directly inconsistent with Roe v. Wade, and Casey, which are Supreme Court opinions from 1973 in 1992, respectively. Okay, they are.

But Amar chides the dissenters for conflating statutes and Supreme Court decisions. The former are the Supreme Law of the Land. The latter are not. Alas, the dissenters bought into the myth of judicial supremacy.

But a statute that’s inconsistent with a Supreme Court opinion, even a Supreme Court opinion purporting to interpret the Constitution is not the same thing as a statute that’s inconsistent with the Constitution itself. And, and one understanding of judicial supremacy and Ed rejects judicial supremacy. And so do I, if this is what judicial supremacy means, one understanding is she was too-quick conflation between what the Constitution actually says and what supreme how Supreme Court decisions have interpreted the constitution.

Fourth, Amar turns to Dred Scott and Lincoln. Here, Justice Sotomayor messed up the history leading to the Civil War.

So in our last week’s episode, I said, Gee, Dred Scott said thus and so and actually, um, it said blacks couldn’t be citizens. It really does say in the opinion. And Abraham Lincoln, actually his Attorney General, disagreed with that and actually issued a passport, a federal passport, to a black, which could only issue if that black were really citizen and Lincoln’s Justice Department and Lincoln’s excuse me, administration, his attorney general Bates took the position, that blacks were citizen, could be citizens under the Constitution, and the Dred Scott was just wrong. His obligation, Bates thought was to the Constitution, and not to the judicial opinion.

Akhil is exactly right. Justice Sotomayor’s analogy to John C. Calhoun and nullification got the issue entirely backwards.

Fifth, Amar analogizes what Lincoln’s administration did in the wake of Dred Scott to what Texas did in the wake of Roe and Casey: take actions that are not contrary to any court order, but allow a precedent to be tested.

Now, it’s possible to imagine a lawsuit might have been able to materialize or not in which that could have been litigated. And the Supreme Court would have had the opportunity then to reaffirm Dred Scott or overrule it. And in effect, that’s what Texas is is doing with it statute is passing a law, which will not be immune from judicial review, once it’s actually directly enforced against abortion providers or their affiliates, they’re Aiders and abettors. And as soon as, a minute, no matter what, what other remedies might exist, or ability to come to court, as soon as that law actually starts to get enforced against people, oh, there will be judicial review. And there will be a court case and the court that court case can easily get up to the U.S. Supreme Court, which can decide whether it wants to re-affirm Roe v. Wade and Casey or overturn them.

In my post, I wrote:

Indeed, S.B. 8 was enacted in the spirit of Lincoln–do not violate a Supreme Court precedent that binds particular parties, but do not give it any more effect than the law requires.

I think Amar would agree.

One of the perverse elements of the 1619 Project, and by extension, Justice Sotomayor’s jurisprudence, is that advocates have to side with Taney on Dred Scott, and reject Lincoln. The foundation of modern critical racial theory is that blacks were inherently unequal under the Constitution. Any argument to the contrary must be rejected. For that reason, Noah Feldman has to line up with Jefferson Davis, in opposition to Lincoln. But if Lincoln was right, and Taney was wrong, then the 1619 Project and Justice Sotomayor are wrong. I’m with Lincoln. And I’m grateful that Amar holds this important line.

Recently, I’ve written about judicial courage. Amidst all the insanity going on at Yale Law School, Amar is demonstrating academic courage. He spoke openly at the Federalist Society convention against his Dean’s policies, and invited Ed Whelan onto his podcast to talk about abortion. Bravo.

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