DOES THE SUPREME COURT HAVE THE LAST WORD?

Supreme Court decisions are often controversial. After all, if people hadn’t disagreed over an important constitutional issue, their case would not have reached the highest court in America to begin with. Most of the time—though not always—once the justices hand down their decision in a case, the plaintiff, the defendant, and the public have to accept it. There’s no place else for them to appeal to.

That doesn’t necessarily mean, however, that the disputes are over and done with. Some issues are so fraught that the debates continue long after the Supreme Court has had its say on the subject. And often, the losers, including members of the public who disagree with the majority of the justices, long to figure out a way to undo or overcome the court’s rulings.

Is that possible? Are there ways to work around the Supreme Court? After all, it is only one of the three branches of our government, and the founders tried hard to establish checks and balances among them.

Let’s take a look at two especially important and controversial opinions that landed in June 2022 to see what actions might be possible.

• Regulation of climate change West Virginia v. EPA held that some problems of climate change involve such “major questions” that only Congress—not the Environmental Protection Agency—has the authority to address them. Opponents of the decision fear that the case will weaken the ability of the EPA to develop policies and adopt and enforce rules that would protect Americans from air pollution and other consequences of climate change. It even raises the question of whether elected politicians or experts hired by federal agencies will have more sway in general.
• Access to abortions Dobbs v. Jackson Women’s Health Organization overturned the 1973 Supreme Court decision in Roe v. Wade that recognized a woman’s right to an abortion under certain circumstances. With this ruling, the court turned the power to regulate abortions over to state governments. The majority of the country, on the other hand, believes a pregnant person should be able to obtain an abortion when necessary, no matter where she lives. Because of the justices’ reasons for their decision, many people worry that the Court will also allow states to ban same-sex marriage in the future.

Responses to these decisions have ranged from euphoria to outrage. Debates have focused not only on how the Constitution should be interpreted but also on whether the Supreme Court really has the final say. What can people do if they disagree with the Court?

In 1910, New York Governor Charles Evans Hughes, who later became Chief Justice of the Supreme Court, stated, “We are under a Constitution, but the Constitution is what the judges say it is.” This comment supports a commonly held view that the Supreme Court issues what are sometimes labeled “definitive” opinions about the meaning of the Constitution. The debate is over because the final answer has been supplied.

But this view can’t be correct for several reasons. First, it would be impossible for anyone to criticize the Supreme Court, which would limit our freedom of speech. Furthermore, since few opinions are unanimous, justices often disagree with each other. And, when the Court overturns an earlier opinion, it is disagreeing with itself—or, at least, with its former members! In Dobbs v. Jackson Women’s Health Organization, for instance, the majority of the justices even wrote that Roe v. Wade was “wrong the day it was decided.”

It’s not just the Supreme Court that can address previous decisions. Both the legislative and executive branches also have options to at least reduce their impact. If the Constitution is amended, a previous decision can be invalidated. The president might be able to take action, and so can states. Here are some approaches to addressing Supreme Court decisions.

Congressional action. In regard to abortion, most lawyers agree that Congress could pass a law recognizing access to abortion as an aspect of reproductive choices. Some people would say that Congress has the authority under its very broad powers to regulate the national economy, which is the basis for a lot of federal legislation. Others would point to congressional powers recognized under the Thirteenth and Fourteenth Amendments.

How do these Civil War-era amendments relate to abortion? The argument goes that forcing a person to carry to term an unwanted pregnancy, especially if it is the result of rape or incest, is the equivalent of involuntary servitude, even slavery, both of which are barred by the Thirteenth Amendment. Part of this argument hearkens back to a central feature of chattel slavery that forced women to produce children who could be used or sold as slaves. The Fourteenth Amendment requires “equal protection of the laws.” And many people view reproductive choice, including abortion, as an important means of protecting women’s equality. Similarly, Congress could respond to the Court’s ruling on West Virginia v. EPA by explicitly authorizing the EPA to issue regulations regulating climate change.

Amending the Constitution. There are a number of examples of court rulings that were reversed by constitutional amendments. Many people believe that one of the worst decisions the court ever made was in the case called Dred Scott v. Sandford, in which the justices concluded that no enslaved person nor any of their descendants could ever be a US citizen. Eleven years later, in 1868, ratification of the Fourteenth Amendment overturned Dred Scott by granting citizenship to anyone born in the United States.

Executive branch actions. A third possible way that court decisions might be constrained comes from the third branch of government: the president can issue executive orders. In July 2022, President Joe Biden issued such an order to protect access to reproductive health care after the Dobbs decision was announced. However, the order is more limited than the decision, and it will undoubtedly be challenged in court.

Action at the state level. Citizens in Kansas recently voted overwhelmingly on a referendum to keep the right to abortion in their state’s constitution. In doing so, they promoted a form of states’ rights over the power of the federal government.

None of these approaches is easy to achieve. Congress is often deadlocked over almost all controversial pieces of legislation. As we explain in Fault Lines in the Constitution, amending the Constitution is devilishly complex, and it hasn’t happened since 1992. Executive orders can only go so far. Not all states allow voters to weigh in on issues through referendums and when it is possible, actions at the state level can result in a crazy quilt of policies around the country. Because of all of these obstacles, Governor Hughes might have had a good point when he said that the court has the final word.

Still, if the Supreme Court makes a decision you don’t like about an issue you care about, remember that you can contact your senator and representative and urge them to take action. And, soon, you’ll be able to vote for congresspeople, who can pass laws, and for the president, who issues executive orders and nominates Supreme Court justices. Or, you can start a campaign to amend the Constitution.

Like members of the court, you are entitled to your own opinions about the Constitution! And you have the right to say so.