The reason good people who are pro-life in principle will, in their capacity as lawyers, acquiesce to Roe v. Wade is, in my opinion, part of the brainwashing that takes place in law school. That brainwashing is also showing up in another lawsuit here in Tennessee that our state’s attorney general is handling. It is reshaping our collective worldview and undermining representative government.

The case involves individuals who have sued Governor Lee and his Commissioner of Health in federal court because Tennessee law does not allow individuals to change the sex shown on their birth certificates once they have figured out, as adults, the “sex” with which they want to be identified.

The plaintiffs make the following constitutional claim:

Tennessee’s Birth Certificate Policy … violates the United States Constitution’s guarantee of equal dignity . . . equal protection of the laws, fundamental rights of liberty and privacy, freedom of expression, and freedom from compelled speech. These constitutional guarantees protect personal decisions central to individual dignity and personal autonomy, including intimate decisions that define personal identity, such as a person’s gender identity. (emphasis added)

Where on earth could the lawyers who wrote that find in the U.S. Constitution the rights I italicized? The answer: Supreme Court opinions.

But how can Supreme Court opinions give rise to constitutional rights?

The Brainwashing

In law school, students are taught the law by reading court opinions; they are not taught that law rests on any given, pre-existing set of ethical principles.

Thus, while law professors may not put it this bluntly, the lawyers they produce are taught to reverence Supreme Court opinions as if they are infallible commentaries on what the Constitution says or as if they are actual statements of law itself.

That’s why the non-rule of law lawyers like the pro-life lawyers opposed to the rewritten abortion legislation talk only about court opinions and how many judges joined in an opinion saying X or Y.

This kind of thinking is what gives justices such enormous power; law students are consciously or subconsciously taught to treat them as if they are divine oracles pronouncing the law from on high via their opinions.

The Truth

But this is the truth: “The opinion of an appellate court . . . is not a legally operative instrument.” Daniel J. Meador & Jordana S. Bernstein, Appellate Courts in the United States, 75-76 (1994).

The only legally operative act of a court is the judgment it enters at the conclusion of the litigation. Moreover, “the only thing the judgment settles authoritatively is what is to be done about the particular case or controversy for which the judgment was made.” Edward A. Martnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U.L. Rev. 123, 126-127 (1999).

What That Truth Means

This means that neither a court’s judgment nor its opinion sets public policy or dictates what laws a legislative body must enact.

As Justice Scalia once rightly said, “The Judiciary . . . must ultimately depend upon the aid of the executive arm and the States even for the efficacy of its judgments.”

That is why Alexander Hamilton wrote in Federalist Paper 78, “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.”

In other words, if the executive and legislative branches don’t go along, then courts are relatively powerless. That’s because, as Hamilton also said, courts have “neither Force nor Will.”

This is not to say that opinions are unimportant or that the judgments of courts should be routinely disregarded, but it does mean that because Justice Kennedy—author of all the supposed “rights” I earlier italicized—fancied himself as some kind of philosopher-king in his ruminations justifying the Supreme Court’s judgment in various lawsuits does not mean that the words in his opinions are to be elevated to some kind of constitutional status.

You will look in vain for any provision in the U.S. Constitution that prohibits a legislative body from enacting a law over and over until the Supreme Court relents. It is only prohibited by the prudential judgment of the legislature not to spend money defending a law repeatedly or repeatedly paying damages in civil rights lawsuits until the Court relents.

The Proof Our Attorney General Treats Opinions as ‘the Law’

In responding to the complaint over our state’s birth certificate law, Attorney General Slatery filed a brief that adopted the language of transgender ideology. He referred to those, like me, for whom there is a congruence between our subjective feelings about our sex and our actual biological sex as “cisgendered” and those for whom there is a lack of congruence as “transgendered.”

Here’s the question I would ask to draw out my conclusion that our attorney general treats court opinions like law itself: What in the Constitution would require the attorney general to adopt the gender ideology language used by the plaintiffs to discuss an equal protection claim?

Nothing, unless he thinks this categorization of persons is constitutionally required.

But what might make him think transgender ideology is what the Constitution protects?

Nothing, unless he thinks the Supreme Court’s opinion in Obergefell v. Hodges is now the legally required understanding of the relationship between biology and sex just because that opinion treated biological men and women as interchangeable pieces when it came to marriage.

In other words, only the Court’s opinion in Obergefell would lead one to think that biology is now constitutionally irrelevant and only the subjective mental states of transgender ideology matter when it comes to equal protection claims.

What Categories of Persons the Constitution Protects

But that Obergefellian understanding of the human (natural) person was not what the Equal Protection Clause was intended to protect when the Constitution was adopted. When it came to laws dealing with the sex of persons, the people understood persons to be categorized as male and female and those categories were (and still are) tied to one’s biological sex.

Male and female are the only sexual classifications we have agreed to protect from unequal treatment in our Constitution.

So, until someone can show me that the common law that indisputably provided the understanding of the word “person” in the Equal Protection Clause meant “cisgendered” and “transgendered” persons, then we’re only talking about male and female persons. Of course, the plaintiffs can’t do that; that’s why they point to court opinions.

Returning to ‘We the People’

If we, the people, want to change how the word person should be understood in our Constitution, we can, but it is not the job of the U.S. Supreme Court to do that through its opinions.

Every time we treat or our legislative representatives allow our attorney general to treat the Supreme Court’s opinions as the law and the Constitution itself, we resign to the justices the authority we, the people, are supposed to have over them.
 

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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.