IF YOU WANT THE JUDICIARY TO RENDER YOUR IDEOLOGY...:

Rarely, if ever, has the Supreme Court stepped back from its well-established pattern of judicial overreach, voluntarily relinquishing power to another branch of government. But with several recent decisions, a majority of the Court has demonstrated a willingness to do just that. For too long, judges have acted as "politicians in robes," dictating important matters of public policy in all 50 states.

In Dobbs v. Jackson Women's Health Organization, the Court overruled the decisions in Roe v. Wade (1973) and its follow-up Planned Parenthood v. Casey (1992). The Roe Court purported to find a right to abortion that springs from a right to privacy found somewhere in the First, Fourth, Fifth, Ninth or Fourteenth Amendments, conceding that "the Constitution does not explicitly mention any right of privacy." The Court has previously found some unenumerated rights (e.g., the right to marital privacy, right to travel, right to vote) protected by implication from other text in the Constitution and historical practice. Yet few constitutional rights are absolute. Determining the extent to which a constitutional right is protected against government regulation requires consideration of temporal framing mechanisms such as the original meaning, what other rights existed at that time and what canons of construction were commonly used by courts.

For example, the right of privacy guaranteed by the Fourth Amendment can be overcome by a warrant, and the right to free speech may be subject to "time, place and manner" restrictions or fighting-words exceptions. So there is no textual basis to support a conclusion that an implied right of privacy, without more, prevents government from regulating based on arbitrary timelines or balancing tests.

According to the Dobbs majority opinion, the Court in Roe "did not claim that American law or the common law had ever recognized [a right to abortion]," and the opinion was more legislative than judicial. Nothing in the text of the Constitution itself supported the conclusion that the federal government had authority to restrict the states in their regulation of abortion. Because the Constitution is silent on the issue of abortion, the authority to regulate abortion is properly returned to the people and their elected representatives in the states. Justice Kagan's accusation does not hold up--textualism does not mean reading new rights into constitutional or statutory silence.

And when an opinion diverges from the text, it is up to the Court to correct that decision. As Justice Clarence Thomas noted in his Dobbs concurrence, the Court "ha[s] a duty to 'correct the error' established" in other substantive due process cases (those that deal with unenumerated rights) and reconsider whether the rights at issue there are supported by constitutional text such as the Fourteenth Amendment's privileges or immunities clause.

In West Virginia v. EPA, the Court considered the scope of the EPA's regulatory reach as authorized under the text of the Clean Air Act, concluding that Congress did not grant the agency the authority to regulate national energy policy by issuing significant rules governing emissions caps. The Court's opinion describes the type of authority the agency purported to have as implicating a major question of policy. After analyzing the text, history and precedent, the Court found that a "clear statement" from Congress was required when an executive agency claims widespread authority to effectuate major policy changes.

The premise of this major questions doctrine is that Congress must clearly articulate the parameters of large grants of authority to agencies because of the lack of checks and balances once those agencies are empowered. This idea of requiring Congress to specifically define agency authority is not new. Then-Judge Brett Kavanaugh explained in his dissent from the D.C. Circuit case U.S. Telecom Assocation v. FCC (2017) that "Congress must clearly authorize an agency to issue a major rule." And as Justice Antonin Scalia explained in Whitman v. American Trucking Associations (2001), Congress does not fundamentally alter regulatory schemes through "vague terms or ancillary provisions--it does not, one might say, hide elephants in mouseholes." Again, Justice Kagan's accusation of using a special new method of interpreting statutes does not hold up.

Put simply, as Justice Felix Frankfurter would have advised: "Read the statute, read the statute, read the statute!"

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