Why the Supreme Court Should Resist Ruling on Divisive Moral Issues (And Why We Should Ignore Their Judgments If They Do) 

By Sam Ayres

On roughly January 22 of each year, with “LIFE” scrawled across the duct tape covering their mouths, and block-lettered “ABORTION IS MURDER” signs in their hands, thousands of protestors flood the steps outside the Supreme Court to protest the 1973 Roe v. Wade decision. Inevitably, these protestors draw equally fervent counter-protesters, and as a result, we have become familiar with the images of these two sides, waving placards, pointing fingers, and screaming across the police barricades a vivid dramatization of the debate over arguably the most divisive issue in our society. The focus (Roe v. Wade) and location (outside the Supreme Court) of their protest is telling of the status of the abortion debate, and public discourse in general: these protesters and counter-protesters, implicitly or not, assert that the last stop for this and any divisive moral issue has become the Supreme Court, and the last say its legal opinion. Indeed, the debate over abortion, for many, has been conflated into a debate over Roe v. Wade; the parties to the debate either revert to or attack the Supreme Court’s decision when abortion enters public discourse. In odd agreement, both sides seem to at least tacitly accept that the issue of abortion is ultimately not in their hands, but in those of the Court’s nine members. These parties more and more see the means to ‘victory’ are judicial appointments, and not more democratic processes (e.g., majority-rule decisions.)

Should the Supreme Court have the final say on a morally divisive issue like abortion? Is it healthy for our democracy for a fervid debate such as abortion not to be decided democratically by these placard-waving citizens, but by an external body like the Supreme Court? Should the Supreme Court have the ability to “freeze” a debate by deciding its outcome before one results organically from the parties?
In this essay, I argue it is unhealthy for our nation for a judgment on a divisive issue to come from the Supreme Court and not from the parties of the debate. While these Supreme Court opinions may appear to provide a pacifying fix it is only a superficial one. Because these decisions are merely palliative, they have the potential to exacerbate the underlying faction, and deeply divide our political society. The Court’s decisions “freeze” the parties in opposition by removing the possibility that their conversation can be productive or generative; this lack of meaningful conversation disaffects the parties from themselves and from the state. I am by no means the first to propose this idea or some form of it (no doubt, those protestors on the steps of the Supreme Court have already come to this revelation!).

1. I will further this argument, and in doing so flesh out what dynamic is healthy between the People and the Supreme Court, by examining the political philosophy (and rhetoric) of both James Madison and Abraham Lincoln. Bryan Garsten, in his book Saving Persuasion: A Defense of Rhetoric and Judgment, argues Madison saw the Constitution as a way of resisting the “Hobbesian impulse to suppress democratic political debate” (BG, 203) in favor of the judgment of a singular external sovereign (which in America would be the Supreme Court). I will use Garsten’s conception of Madison and the Constitution to argue first, Lincoln, in the spirit of Madison, was resistant to Dred Scott because it represented an externalized judgment that put an end to generative deliberation, and second, following both Madison and Lincoln, we too should resist these judgments for principled and practical reasons. Sustained public debate is necessary for the parties to maintain a faith in each others’ reasonability, a faith that is necessary to preserve our constitutional republic. As such, the Supreme Court should show restraint and simply not take cases concerning deeply divisive moral issues; instead, we should encourage citizens to confront each other with words not placards and erect fingers.

The January shouting matches on the steps of the Supreme Court are relatively mild compared to the faction that materialized in revolt and riot, raising the hackles on our founders’ necks. In the Federalist, Madison takes up this problem of faction, and concludes there are two “methods of curing [its] mischiefs”: either “remov[e] its causes” or “control its effects” (Federalist 10, 41). The first way to remove the causes of faction would be to “destroy the liberty which is essential to its existence” namely freedom of speech. We generally agree with Madison that “it could never be more truly said … that [this remedy] is worse than the disease.” Second, Madison concludes one could do away with the causes of faction by “giving to every citizen the same opinions, the same passions, and the same interests.” Madison finds this to be “as impracticable…as the first [remedy] would be unwise.” It is the “nature of man” to disagree, and an attempt to deprive man of “diversity in the faculties” would be an attempt to deprive him of his “connection ... between his reason and his self love.” In Madison’s view, the “protection of these faculties” must be “the first object of Government.” The causes of faction our liberty to voice our opinion cannot be eradicated because, while dangerous as the underlying sustenance of faction, they also help to nourish and produce a healthy citizen and a healthy populace.

2. Defending the liberty to possess and speak opinions, Madison boldly states that when it comes to factionalizing disagreements, “the parties are and must be themselves the judges” (Federalist 10, 42). He steadfastly resists taking away freedom of speech or forcing upon the people one opinion or one ruling (like that of the Supreme Court). Instead, in a divisive disagreement, the issue should be decided by majority-rule3: “the most numerous party, or, in other words, the most powerful faction must be expected to prevail.” Bryan Garsten notes that Madison’s stance is foremost an opposition to Hobbes; he writes it was Madison’s “fundamental commitment” to the people’s right to judge “that led him to seek a wholly different approach to demagogy and faction than the one initiated by Hobbes” (BG, 203). (That approach was the Constitution.) So, while Madison acknowledged (echoing the Leviathan) that the “latent causes of faction are…sown in the nature of man” (Federalist 10, 41), he parted ways with Hobbes in how to remedy or hem dissension. As Garsten notes, Madison viewed “representative or republican government to be an alternative to unified sovereignty and a guard against it” (BG, 203). Madison’s representative republican government, in Garsten’s conception, is a way of distinctly resisting the “Hobbesian impulse to suppress democratic political debate.” Sanctifying the Supreme Court’s opinion is this Hobbesian impulse.
The Supreme Court’s role in factionalizing debates became more salient as did the most divisive issue of our nation slavery. The slavery debate was the sort of deep moral disagreement that Madison believed should be left to the parties to judge, and which Hobbes believed should be resolved by an external unified sovereign. In 1857, Lincoln, like Madison, encouraged citizens to confront one another over this deep moral disagreement, rather than accept the Supreme Court’s decision in Dred Scott v. Sanford4 as a final opinion on the matter of slavery. In the vein of Madison, Lincoln felt that faction can and should only be mediated through cycling the divisive issue back through the parties so that so they might debate and judge.
At this time of great faction there was again a Hobbesian impulse to sanctify the Supreme Court’s decision in the Dred Scott case and let it in part end the debate over slavery. Lincoln’s opponent, Stephen Douglas, advocated “yield[ing] to the majesty of that authoritative adjudication” (Douglas: CD 258). Articulating nearly verbatim one of the hallmark Leviathan arguments (and in patently Hobbesian rhetoric), he criticized Lincoln’s call for renewed debate regarding the Dred Scott decision and slavery in general, asking, “what security have you for your property, for your reputation, and for your personal rights, if the courts are not upheld, and their decisions respected when once firmly rendered by the highest tribunal known to the Constitution?” Douglas explicitly positioned the Supreme Court as a necessary external source with ultimate judgment on factionalizing issues.

However, Lincoln’s nuanced “resistance to the decision” was not with respect to the actual case (“If I wanted to take Dred Scott from his master, I would be interfering with property”), but as a “political rule” [Lincoln: CD, 258]. Dred Scott, he said, was merely a “niche” in a “complete legal combination,” a “piece of machinery, so to speak” (HD). Lincoln was opposed to the Supreme Court’s overreaching assertion that they alone are to interpret the Constitution.5 Lincoln argued that no one part of the government should have absolute authority regarding constitutional legitimacy: “the citizen [should not] conform his vote to [the Supreme Court’s] decision; the member of Congress, his; the President, his use of the veto power” (Lincoln: CD 259). In the vein of Madison, Lincoln goes so far as to add the parties as a de facto fourth branch, so that they are themselves always the judge: if the issue is constitutional interpretation, they can judge that democratically, too, he seems to be saying. Thus, Lincoln wished to “reverse [Dred Scott] … peaceably” (Lincoln: CD 258), and reengage citizens in discussion.

In light of Madison’s views on representative republicanism (and Garsten’s framing of them), Lincoln’s resistance to a singular Constitutional authority was a resistance to the presence of a Hobbesian sovereign in American political society. Moreover, in my conception, Lincoln opposed one branch of the government being the sole interpreter of the Constitution lest that Constitutional authority be interchangeable with a moral authority on the issue. If Dred Scott were to end the slavery debate, it would confuse the Supreme Court’s singular constitutional authority with a singular moral authority: this conflation “educate[s] and mould[s] public opinion” to “”care not whether slavery be voted down or voted up” (HD). Moreover, the Court’s supremacy threatened to make the parties and their liberty to hold opinion moot, by removing the chance that their deliberation might produce a resolution. In our democracy, where the right to opinion is valued, it was and is a problem when the Supreme Court’s opinion is unassailable on Constitutional grounds, and thus in the minds of some on moral grounds. Like Madison, and unlike Hobbes, Lincoln wished to allow democratic discourse to run its course. A Hobbesian sovereign by any other name still infringes upon the people’s right to judge.

At this point, one might object that, while on principle, this Hobbesian impulse is undemocratic, it doesn’t appear to be wholly incompatible with our democratic government; on the contrary, isn’t a Supreme Court decision a small bit of ‘oppression’ to bear for a neat end to a prickly debate? Why is it pragmatically necessary, and not just good, for the parties to judge on divisive issues?6

The answer is that a “house divided against itself cannot stand” (HD). Lincoln believed that our “government cannot endure permanently half slave and half free” (HD). In my view, ‘permanently’ is the key word here: while Hobbes thought that controversy over a divisive moral issue was the problem, the real danger is controversy frozen by an external judgment like that of the Supreme Court. In Lincoln’s view, the Supreme Court’s pernicious influence was in freezing the parties into a static state of opposition, whereby no sort of vibrant, productive deliberation could be had, and the parties themselves were robbed of the power to generate a decision or conclusion themselves. The Hobbesian paradigm wrongly identifies controversy as the problem of faction; rather, the preclusion of meaningful deliberation between parties exacerbates dissension. For this reason, Lincoln did not think that the “house [would] fall” if the issue were at least placed back in the hands of the parties, who would have to appeal to the “public mind” (HD). While certainly biased toward an outcome, Lincoln was far more invested in letting slavery’s “advocates …push it forward” or its “opponents” succeed in its “ultimate extinction” (HD) he wished for the issue to be  “echoed back upon the people” (HD). By “house divided” he meant not by mere controversy, but divided by a lack of meaningful discourse.

When deliberation is removed from the table, so too is the chance for persuasion. When one party is seen as no longer able to be persuaded (in Madison’s words, no longer able ‘to be the judge’), it asserts that they have lost their ability to be reasonable. The lack of generative communicatory currents belies a deeper rupture, which is the ultimate problem of the Hobbesian model both sides see the other as hopelessly unreasonable. For this reason, Lincoln feared Douglas’s “mission” to “impress[] the ‘public heart’ to care nothing about” (HD) the issues of slavery and instead assent to the Supreme Court’s decision because the parties would then care nothing about each other, seeing both the debate over slavery, and the parties involved in it, as no longer under the sway or influence of reason. This loss of faith in reasonability is a threat to constitutional government. The problematic Hobbesian doctrine of an external sovereign creates a populace that is irrevocably divided the parties are disaffected from the state and from each other. While these Supreme Court judgments may appear to work, it is important to remember that a faith in all parties’ reasonability the faith that anyone within a political culture is receptive to reason is the faith is what allows a mere document, and not the iron-fist of a unified sovereign, to bind disparate peoples.
We see the Court’s ironic divisive effect especially in the case of abortion. The preclusion of these communicatory currents creates deeper divides: while certainly abortion is a hot topic because it is highly emotive, the enmity and dissension between opposing groups is inflamed by the absence of generative debate. They know the issue is out of their hands, and into those of the Court; they have no use for each other.

Maybe even more dangerous, these sorts of Court decisions can create widespread political and mutual disaffection where before there may have been none.7 A decision not reached democratically by the people (like Roe) asserts that the parties have no common reasonability, and thus no common ground on any issue. While before dissension was confined within a single moral disagreement, the external judgments of the Supreme Court formalize indeed legalize the irrationality and irreconcilability of the parties. In a sense, the government rules it is not united. Thus, turning Douglas’s charge (that Lincoln was condemning the nation to Civil War) on its head, the Hobbesian form actually facilitates, if not necessitates, a greater final conflict and rupture of the political community than would result from uninterrupted debate. The prediction of Hobbes and Douglas that the parties themselves cannot engage each other (in deliberation) actually causes this to be true on the whole. The very first externalized judgment sends the message to these parties that indeed, they are not persuadable and reasonable, and their issues not reconcilable. It tells the parties especially the ‘losing’ party they have no place within the political society.

Will our nation go to war over abortion? No. However, in light of the slavery debate, we should be wary of the Supreme Court ruling on deeply divisive moral issues in the midst of public debate. It is important for us today to remember Lincoln’s distinction, that a house is truly divided only by external judgments, and not by mere dissension; it is divided when there are no longer any sort of procreative communicatory currents between the two sides (only shouting matches across police barriers).

While we should (begin to) resist the Supreme Court’s ability to end generative debate, and seek more democratic means of resolution, it is not clear we can do away with our Hobbesian impulse any time soon. At least in the time being, these opinions are and will be formative in the American consciousness. So, what do I prescribe? The Supreme Court should resist taking on cases and issuing opinions that deal with divisive issues while these issues are the subjects of public discourse. The Court should abstain, and instead allow for democratic measures to decide these issues, for even the minority in a majority-rule scenario recognizes that the parties themselves ‘were the judges,’ and for that reason, all members of the state are assumed to be reasonable fellow citizens. The Supreme Court’s decisions made in medias res may seem an easy fix; however they have the potential to disaffect the people from each other and the state, and, in true Hobbesian form, place the parties in a state of (placard-waving) war.

Sam Ayres is a is a sophomore Humanities and English major in Morse College. 

Works Cited
HD: Lincoln, Abraham. “House Divided.” Republican State Convention. Springfield, Ill. 16 June 1868.
LA: Lincoln, Abraham. “Lyceum Address.” Young Men’s Lyceum. Springfield, Ill. 27 Jan 1838.
Federalist: Hamilton, Madison, and Jay, Federalist Papers, in The Federalist with Letters of “Brutus,” ed. Terence Ball (New York: Cambridge UP, 2003).
BG: Garsten, Bryan, Saving Persuasion: A Defense of Rhetoric and Judgement. (Cambridge, Mass: Harvard UP, 2006).
CD: Brest, Paul, Sanford Levinson, Jack M. Balkin, Akhil Reed Amar, and Reva B. Siegel, Processes of Constitutional Decisionmaking: Cases and Materials, 5th ed. (New York: Aspen Publishers, 2006).
Endnotes
1. Indeed, quite a few people before me have come to the conclusion that disaffection and enmity often result from external judgments like those of the Supreme Court. Bryan Garsten, in his fabulous book Saving Persuasion (to which I will refer throughout the essay), himself argues that this disaffection usually of religious groups can occur from what he calls “liberal alienation” (BG, 185). He goes on to note others who have made some iteration of this argument: Bonnie Honig, in Political Theory and the Displacement of Politics, actually explicitly addresses the political climate following abortion and offers a similar argument, arguing decisions like Roe, in her words, create “remainders of system” (3) which “may return to haunt and destabilize” (15); Garsten paraphrases Robert Burt’s argument from The Constitution in Conflict, saying that “efforts to make the courts sovereign sources of authority whose judgments can resolve otherwise intractable disputes has produced, at various points in the U.S. history, intensified conflict over precisely the issues that the courts were aiming to resolve” (BG, 185).
 2. Madison argues that, although “liberty is to faction what air is to fire,” this same liberty is “essential to political life”; eliminating it in a constitutional democracy would be to akin to removing air from actual “animal life” (Federalist 10, 41).
3. At this point, it is important to note that while Madison believed in the validity and efficacy of majority-rule, Lincoln did not. In fact, he believed majority-rule what he derisively called “squatter sovereignty” actually “perverted” the “sacred right of self-government” so as to mean “[t]hat if any one man choose to enslave another, no third man shall be allowed to object” (HD). I will not address the merits or faults of majority rule in this paper; rather, it is sufficiently important that both Madison and Lincoln were joined in opposition to a singular external sovereign, and advocated cycling an issue back to the people.
4 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
5 A lot of ink has been spilled arguing where Constitutional authority should lie within the three branches of our government. For much more on the subject see Akhil Amar’s America’s Constitution: A Biography.
6 In addition to his previous ideas (already mentioned), Garsten offers a different, and quite novel, pragmatic answer to this question: he argues that “in addressing our fellow citizens directly, we make an effort to influence them, not with force or threat or cries, but with articulated thoughts that appeal to their distinct capacity for judgment” (BG, 211), which, among other things, cultivates an engaged populace averse to demagogy.
7 Garsten provides an illuminating example of this idea in practice: he argues that Lyndon Johnson’s 1960 campaign tour of the South (following dissension over civil rights issues) was primarily a way of “not giving in to the view that southern opinion was irredeemably prejudiced and dogmatic but instead indulging the hope that there could be found … deliberative pathways and a capacity for situated judgment” (BG, 195). Johnson (and, thus Kennedy) “maintained a fundamentally democratic faith in the possibility of persuasion” (BG, 195) even with groups that seem irreconcilably distant.

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