What a dust-up between Rick Santorum and Rachel Maddow can teach everyone else
By S.M. | NEW YORK
LAST WEEK, in a fit of chutzpah or foolishness, Rick Santorum, a GOP presidential candidate known for his unyielding social conservatism, accepted an invitation to appear on Rachel Maddow’s cable-news show. Ms Maddow is an openly gay, liberal MSNBC host who was a Rhodes Scholar and holds a doctorate from Oxford. Mr Santorum, an attorney and former Pennsylvania senator, is known for his boldly anti-gay rhetoric. He once said that Lawrence v Texas, the Supreme Court case that struck down sodomy bans in 2003, would usher in an era of “man on child, man on dog, or whatever the case may be.” Following Obergefell v Hodges, the Supreme Court’s recent landmark ruling in support of gay marriage, Mr Santorum asserted, in a speech to the National Right to Life Foundation, that the court does “not have the final say on anything. The American people have the final say on everything.”
It was this rather creative view of America’s division of powers that Ms Maddow was keen to challenge. Here we consider their debate, and pick apart their respective arguments. Spoiler-alert: their tussle had one clear victor:
MS MADDOW: Well, the Supreme Court is the supreme — I mean, it is the Supreme Court.
MR SANTORUM: Yes. But it’s not a superior branch of government. I mean, if the Congress comes back and says, you know, we disagree with you and were able to pass a law and get it signed by the president and say, courts, you’re wrong, I mean —
MS MADDOW: You could not pass a law that could contradict the constitutional ruling of the Supreme Court.
MR SANTORUM: What if they're doing it with an — from an unconstitutional basis?
MS MADDOW: They decide what's constitutional. That’s how our government works.
That round went to Ms Maddow. It is true, as Mr Santorum said, that the Supreme Court is not a “superior branch of government”. It can neither make law nor carry it out. But as Chief Justice John Marshall wrote in Marbury v Madison,the landmark of all landmark cases from 1803, “it is emphatically the province and duty of the judicial department to say what the law is.” Members of Congress take an oath to uphold the Constitution, but when there is a dispute over the constitutionality of a law, only judges get to decide what the Constitution and the laws mean, and the Supreme Court gets the final word. Ms Maddow expressed that idea nicely:
MS MADDOW: … you're fundamentally wrong on civics, right? If there is...a question as to the constitutionality of a law, it gets adjudicated.
MR SANTORUM: Right.
MS MADDOW: And the second syllable of that word means it get decided in the judiciary, the Supreme Court decides whether or not a law is constitutional. So, you could not now pass a law —
MR SANTORUM: But if they have —
MS MADDOW: — that said we’re banning same-sex marriage.
On this point, too, Ms Maddow is correct. In the wake of Obergefell, there has been grumbling from officials in several southern states, but even Roy Moore, Alabama’s irascible chief judge, who speculated that the justices were under the spell of Satan when they decided Obergefell, has not attempted to block same-sex marriage in his state. Likewise, Ken Paxton, the attorney general of Texas, complained of the Court’s “lawlessness” but did not consider himself authorised to resist the ruling. He did, however, release county clerks who object to gay marriage on religious grounds from the responsibility of issuing marriage licenses to same-sex couples. “Numerous lawyers stand ready to assist clerks defending their religious beliefs,” he warned.
Yet Mr Santorum dug in his heels. “I’ll give you an example,” he said.
The partial-birth abortion statute, which sort of has come to light because of the Planned Parenthood tape, which they obviously used partial birth abortion to deliver some of these babies...The Supreme Court said it was unconstitutional. What we did as a member of Congress is we passed a law outlawing partial-birth abortion again, and we said to the Supreme Court, you’re wrong. And we actually listed the reasons why we thought the court was wrong. We made a minor — and I mean really minor change in the bill. Senate passed it. President Bush signed it and — guess what? The Supreme Court reversed itself.
Mr Santorum has this story partially right. In 2000, by a 5-4 vote, the Supreme Court invalidated a so-called “partial-birth” abortion ban in Nebraska in its Stenberg v Carhartruling; the law, which banned a procedure involving the partial delivery of a foetus before it is destroyed, was deemed an unconstitutional burden on the right to an abortion under Roe v Wade.Three years later, when Congress passed (and President George W. Bush signed) the Partial-Birth Abortion Ban Act, three federal appellate courts found the law unconstitutional, but in 2007 the Supreme Court, by another 5-4 vote in Gonzales v Carhart,upheld the law. Technically speaking, the court did not “reverse itself”, as Mr Santorum claims: the Gonzales majority distinguished the federal ban from Nebraska’s law, describing the former as “more specific concerning the instances to which it applies and in this respect more precise in its coverage.”
The bigger practical difference between Stenberg and Carhart was the replacement, in the intervening years, of Justice Sandra Day O’Connor, who voted to strike down Nebraska’s law, with Justice Samuel Alito, who upheld the federal ban. This vehicle of change is what Mr Santorum seemed to have in mind when he said later in the interview that what he “would like to see as president” is “a whole new group of justices.” Though the present majority on the court approves of same-sex marriage, “if you have a new group of justices, I think you might very well get a different decision.”
But the justices do not tend to retireen masse. And the court does not often reverse itself in a way that curtails individual rights. The justices have clarified and narrowed rights to abortion and religious free-exercise, but the court has never stripped an entire group of people of a protected right. The prospect of a complete do-over of the court’s Obergefell decision—even with careful manipulation of the bench by a prospective President Santorum—seems far-fetched.
Is Mr Santorum at all accurate in believing that Congress—as an extension of the “final say” of the American people—has the power to overturn the Supreme Court? As it happens, yes. Congress can indeed expand rights beyond those recognised by the Supreme Court, as it did in reaction to Employment Division v Smith when it passed the Religious Freedom Restoration Act in 1993. And if the constitution does not safeguard a certain right, Congress can create or amend laws to ensure such protection itself. For example in 1976 the court ruled in General Electric v Gilbertthat pregnant women could be discriminated against in the workplace, as such discrimination was neither unconstitutional nor legislated against. So Congress came back two years later with the Pregnancy Discrimination Act, thereby legally adding this protection. When the court put sharp limits on bosses' liability for under-paying female employees, Justice Ruth Bader Ginsburg noted in her dissent that "the Legislature may act to correct this". It did: Congress passed the Lily Ledbetter Fair Pay Act of 2009. Indeed, lawmakers regularly craft laws in response to narrow or undesired rulings based on existing statutes, as Matthew R. Christiansen and William N. Eskridge junior show in a recent study in the Texas Law Review. But Congress is not entitled to scale back on rights the Supreme Court says are protected by the constitution.
This seems to be a GOP presidential campaign season in which no number of gaffes will turn off voters. Donald Trump's daily foot-in-mouth episodes only seem to make him stronger. Mike Huckabee's charge that Barack Obama's Iran deal will lead Israelis to the "door of the oven" hasn't yet hurt him (though he doesn't have far to fall). Mr Santorum's miserable performance on the Rachel Maddow Show may make little difference to his already-meagre poll numbers. Her audience of young coastal lefties is hardly his preferred demographic, after all. But in search of free publicity, Mr Santorum has revealed himself to be a candidate who understands little about the constitutional structure of the nation he would like to lead. One hopes the civics lesson was instructive.
