In James Joyce’s classic short story “Grace,” a tipsy Irishman gives a comically garbled history of the First Vatican Council debate on papal infallibility.
He claims that an Irish archbishop, John MacHale, was one of only two holdouts against the doctrine.
“There they were at it,” he says, “all the cardinals and bishops and archbishops from all the ends of the earth, and these two fighting dog and devil until at last the Pope himself stood up and declared infallibility a dogma of the Church ex cathedra.”
At that, we’re told, MacHale dropped all opposition and “shouted out with the voice of a lion: Credo!” I believe!
“That showed the faith he had,” the tipsy man concludes with satisfaction.
It’s not an accurate account of the proceedings of Vatican I, but it exactly captures the faith of lawyers.
We argue dog and devil right up until the moment the Supreme Court declares a new constitutional doctrine, upon which we instantly adjust our arguments to accommodate the new constitutional reality.
For courtroom lawyers, it simply doesn’t matter whether the court’s rulings are right or wrong. To work effectively within the legal system, your every argument must be based on the assumption that “the Constitution” and “constitutional law as propounded by the Supreme Court” mean the same thing.
Schoolchildren are taught that the Constitution sets forth the unchanging principles on which the Republic is founded. And yet the Constitution enforced in our courts changes all the time. That paradox lies right at the heart of our legal system.
On Sept. 1, in Whole Women’s Health v. Jackson, a 5-4 majority of the Supreme Court denied a request to block enforcement of Texas’s new anti-abortion statute. The statute was deliberately written to be inconsistent with Roe v. Wade, a 1973 constitutional ruling by the court.
If Roe was a correct interpretation of the Constitution, the court’s refusal to block the statute’s enforcement was plainly wrong. But if the order was correct, it can only be because Roe was wrong. I think the conclusion is inevitable that the court failed in its duty to enforce the Constitution’s commands. The only question is whether the failure occurred in 1973 or 2021.
Almost 30 years ago, rejecting an earlier challenge to Roe, three Republican justices (Sandra Day O’Connor, Anthony Kennedy and David Souter) wrote a joint opinion expressing their view that the court’s legitimacy would suffer if it changed its constitutional rulings every time its personnel changed.
In response, then-Chief Justice William Rehnquist pointed out that over the course of 21 years, “the Court has overruled in whole or in part 34 of its previous constitutional decisions.”
How many of those 34 flip-flops corrected an earlier error, and how many introduced a new one?
Of course, one would hardly want a Supreme Court that never admitted when its earlier incarnations erred, or acted in bad faith.
And that exposes a dilemma inherent to the Supreme Court’s dominant political role in our society. We want today’s honest justices to have the power to correct the distortions introduced into the law by their politically-motivated predecessors. But by granting them that freedom from restraint, we empower future politically-motivated justices to interfere with our democracy in new ways.
Those 34 overrulings illuminate another crucial point about the Supreme Court, too. In each instance, the justices could have chosen to adhere to the prior ruling, which, after all, once persuaded a majority of their predecessors. Instead, they chose to overrule it.
Similarly, every 5-4 constitutional ruling (and there have been plenty of those, including Whole Women’s Health v. Jackson) reveals the existence of two competing interpretations, each found persuasive by some of the nation’s most eminent jurists. For the court to reach its decision, the justices had to choose between alternatives.
The point is that the justices don’t mechanically “follow the law” when they interpret the Constitution. Instead, they choose which law to follow.
Their choices may indeed be based on principle, as they invariably insist. But if individual justices rely on principle instead of crass political calculation, that in itself is a choice. No one could stop them from putting politics first.
In 1953, Justice Robert Jackson observed that “if there were a super-Supreme Court,” it would frequently overturn the Supreme Court’s decisions. He added: “We are not final because we are infallible, but we are infallible only because we are final.”
It’s funny and true, but the most important point is that the Supreme Court’s infallibility is serial. Every constitutional ruling it makes is the final word – until the next one replaces it.
Repeat after me (voice of a lion optional): Credo!
Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at firstname.lastname@example.org.