FAS and SNF Agora organize debate on the role of the Supreme Court

The Foreign Affairs Symposium (FAS) and the Stavros Niarchos Foundation (SNF) Agora Institute’s University debate initiative co-hosted the debate on the Supreme Court featuring Neal Katyal and Jeffrey Rosen on April 6. This was the fifth event in the 2023 Foreign Affairs Symposium series “Paradigm Shift.”

The primary focus of the event was to use Dobbs v. Jackson Women’s Health Organization, the Supreme Court decision from last year that decided there is no constitutional right to an abortion and overturned Roe v. Wade, to provide a better understanding of the Constitution and the Supreme Court’s ruling process. Both speakers were assigned positions to take on Dobbs v. Jackson Women’s Health Organization; the affirmative position would argue that the Dobbs case was correctly decided, while the negating position would argue that the case was wrongly decided. 

In an email to The News-Letter, Louise Flavahan, dialogue and debate director of the SNF Agora Institute, conveyed that the event was planned in response to student interest.

“We’ve heard repeatedly that students know that the Supreme Court has become a flashpoint in American politics and is influencing many important policy and legal issues that directly impact their lives, but they don’t quite know or understand the details or how to effectively engage in the conversations going on about the Court or, perhaps most importantly, what they can do about it,” she wrote.

Katyal, former principal deputy solicitor general of the U.S. and current professor at the Georgetown University Law Center, was assigned to the affirmative position. Rosen, president and chief executive officer of the National Constitution Center and professor at George Washington University Law School, on the other hand, took the opposing position. The debate was moderated by Kimberly Wehle, professor of law at the University of Baltimore.

In an email to The News-Letter, junior Ying Qin claimed that she chose to attend the event after learning about the speakers.

“I attended because Jeffrey Rosen is the host of the National Constitution Center podcast,” she wrote. “I really like the podcast and want to hear him speak in person.”

Before the debate started, participants shared their opinions through a pre-debate poll. An overwhelming majority of 90% were con-Dobbs and about 50% reported that they were sure their position is the right one.

In the debate, Katyal explained that the Supreme Court determines a constitutional right based on balancing both the needs of the public order and personal freedom, as well as rooting decisions in the nation's traditions. 

As the question of abortion is not mentioned in the Constitution, Katyal stated that the Supreme Court does not have the power to decide the answer.

“Even when Roe v. Wade was decided, abortion was a crime in the majority of states,” he said. “Roe v. Wade said that [the nine Supreme Court justices] could sweep away the democratically enacted laws that prohibited abortion. That is an arrogation of power.”

Rosen explained that there are three factors for deciding whether or not a precedent should be overturned: whether it was workable, whether overturning a precedent would cause harm, and whether there were changes in society. He reasoned that as Roe v. Wade was widely understood and enforced, generations of women formed reliance on the expectation they will have access to a legal abortion.

In addition, Rosen refuted that historically, abortions that take place before 15 weeks of pregnancy, were not considered a crime by common law and were not prosecuted. He added that Roe v. Wade is an especially important precedent in the Supreme Court because it was repeatedly reaffirmed by judges appointed by presidents of both parties.

“Therefore, whether you decide the case according to text, history, tradition, precedent or basic notions of justice, Roe v. Wade should have been reaffirmed,” Rosen said.

Katyal emphasized that the Supreme Court fundamentally can only exercise its power to uphold or strike down laws based on the Constitution. He argued that the Court does not have the power to make policy decisions and that it may be dangerous to give them such power.

Rather than entrusting that power to the Supreme Court, Katyal suggested that the best way to address the issue of abortion is through the electoral process. He encouraged the audience to exercise their right to vote and elect legislators who will support their opinions.

Rosen drew attention to the Equal Protection Clause of the 14th Amendment. He pointed out that the decision against abortion is a violation of women’s equal rights and freedom, such as their autonomy to decide what to do with their bodies.

After the debate, participants engaged in a post-debate poll. Whilst the majority, around 80%, still maintained to be con-Dobbs, some participants gravitated towards pro-Dobbs. A higher percentage reported being more open to both sides of the argument compared to the pre-debate poll.

In an interview with The News-Letter, sophomore Sam Crankshaw shared that the debate deepened his knowledge on the topic.

“Even though my overall take didn't change, I would say my views are more nuanced now than they were before,” he said.

In the Q&A session following the debate, the speakers dropped their assigned roles to answer questions raised by participants. 

In response to questions about the politicization of the Supreme Court, Katyal explained that the court should not hear cases that are too politically charged in order to conserve its credibility with the American public. He expressed concerns about the recent moves of the court.

“If you think about the Court for the last couple of years, that isn't how they’re acting,” he said. “Whether it's affirmative action, guns, climate, administration state or abortion, they're jumping into every major issue, and that is something very much I think to worry about.”

Qin commented that she thought the debate was well-moderated and offered thoughtful insights on the Supreme Court and the Constitution, but it should provide a more unslanted view in the future.

“I'm surprised that their sides were randomly decided before the debate. I feel that both speakers were against the Dobbs decision, so the pro-Dobbs argument was not fully presented,” she wrote. “I wish a conservative speaker could be invited next time so that the debate could be less biased.”