Op-Ed: Supreme Court’s ultimate test: When rights collide
Just as spring brings baseball and autumn means football, early summer is Supreme Court season. For a few weeks, all eyes turn to the Marble Palace, as the court tackles (or punts) many of the great legal issues of our time.
The latest string of landmark rulings, many handed down over forceful dissent, has inspired predictable commentary. The court is hopelessly divided, we’re told. It is cravenly partisan, blind to reality and shockingly unprincipled. Except when we agree with it.
This kind of simple analysis captures the political imagination and fires up the talking heads.
Yet as tempting as it may be in this partisan age to see clarity in the law and malice in the views of others, it’s not that tidy. The fiercely independent justices are too diverse, the court’s role too complex and the Constitution too capacious to yield to such caricature.
“The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another,” retired Justice David H. Souter said in a 2010 Harvard commencement speech. “We want order and security, and we want liberty. And we want not only liberty but equality as well.” (Not to mention privacy, transparency, accountability and efficiency.)
Such clashes of values force the justices to exercise judgment: to balance compelling and conflicting values, to forge law by matching shared principles and traditions with ever-changing circumstances and needs. Acting in good faith, reasonable people can disagree over these profoundly hard issues.
Rather than treating those with whom we disagree as fools or knaves (or both), we would be better served to recognize a fundamental truth of our Constitution and democracy: The most complex questions can never be answered once and for all, certainly not by nine black-robed men and women interpreting a centuries-old charter.
Consider the hotly anticipated decision in McCullen vs. Coakley, about a Massachusetts law that effectively banishes protesters from coming within 35 feet of an abortion clinic.
Where many see a case about women’s rights to shape their own destinies, others see a case about the right to try to dissuade pregnant women from doing something horrible. In truth, two sets of rights are at issue, and the court must decide how best to respect them both. That issue is much harder than the standard liberal/conservative story acknowledges.
Another case the court will decide this term, Harris vs. Quinn, also involves a clash of values. That case asks whether a state may compel even those public employees who elect not to join a union to pay fees to the union, since they benefit from the collective bargaining agreements it negotiates.
A “yes” answer would compromise the rights of workers to disassociate themselves from a union, rights grounded in the freedoms of speech and association. A “no” answer would compromise the rights of workers to form a union that can robustly defend their most fundamental interests. Reducing the case to the familiar debate over public employee unions oversimplifies the issues.
Another of this term’s cases, National Labor Relations Board vs. Noel Canning, also doesn’t lend itself to such simplification. It asks the court to decide when the president can make “recess appointments” to federal agencies. Even in this brave new age of filibuster reform, the case could have major implications when the Senate and presidency are controlled by different political parties.
Although often viewed as a referendum on President Obama’s aggressive use of the recess power, the Noel Canning case raises far deeper questions. It asks the court to decide whether and how to adapt the separation of powers to an age of partisan dysfunction. And any ruling will inevitably interact in uncertain ways with shifting partisan agendas and Senate rule reform.
Each of these cases marks another step in the court’s unending quest to balance conflicting rights, to distill the meaning of U.S. history, to draw a map of constitutional guarantees even as the terrain shifts beneath its feet. They afford the justices, and all of us, a chance to revisit and reflect on what the Constitution ought to mean in our time.
This shared commitment to an ongoing constitutional dialogue unifies us, reminding us of our role as “We the People,” even when we disagree with the court’s ruling. Agreeing to live under the rule of law embodied in the court’s necessarily temporary resolutions of the deepest conflicts is one of America’s greatest strengths.
This is not to say we must live happily with whatever the court rules. We can and should express our disagreements, whether by legislating, voting, protesting, criticizing, calling for amendments or arguing that the dissenters’ views should eventually become the law — as they sometimes do. But that process should respect, not dismiss, the clash of values embraced by our Constitution.
Laurence Tribe is a professor of constitutional law at Harvard and the author, most recently, of “Uncertain Justice: The Roberts Court and the Constitution” (coauthored with Joshua Matz).
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