The Stench of a Politicized Supreme Court
As this court seems set on overturning Roe v. Wade and abortion rights, the further damage to the once-trusted institution is obvious
What are some ideal characteristics required of a Supreme Court Justice to faithfully, fruitfully, perform his or her duty? Surely, a deeply felt sense of justice. Of course, a commitment to truth and honesty. Absolutely, the capacity for empathy and compassion and understanding for what the cross-section of Americans experience and struggle with to live their lives.
The gap between qualities such as these and what we heard on Wednesday from at least the two newest justices was painfully vivid—not only stoking fear about the probability of overturning Roe v. Wade and turning the clock back 50 years on women’s reproductive rights, but also exacerbating doubt about the legitimacy of a once-honored institution and reducing it to little more than another partisan political operation.
Justice Sonia Sotomayor, expressing her fear about overturning the well-established abortion rights precedent by upholding a Mississippi law that bans almost all abortions after 15 weeks, said it most memorably: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.” She also asked: “If people actually believe that it’s all political, how will we survive? How will the court survive?”
Sotomayor was not the only one who wondered. Justice Stephen Breyer quoted from the 1992 Planned Parenthood v. Casey decision that solidified Roe and asserted that women have the constitutional right to end their pregnancies up until the fetus is viable: “To overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court’s legitimacy beyond any serious question.”
Breyer worried about the risk of perceived politicization. “Feelings run high,” he said. “And it is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure.”
But Sotomayor and Breyer are part of the three-justice liberal minority on this court. What did Mary Ziegler, author of Abortion and the Law in America, witness listening to the court’s audio? “What I heard Wednesday morning was not a court in which a majority was worried about backlash, but a court ready for revolutionary change,” she noted.
It was different than what she expected: “I thought that the justices would give themselves time to soften the blow, to make their case to the American people while overhauling abortion rights and to defuse arguments that the justices are just partisans in robes.”
As if the abortion decision itself is not reason enough to question the judiciousness of this current court, consider the fresh damage to the court’s legitimacy caused by newly installed Justices Brett Kavanaugh and Amy Coney Barrett. I believe their failings cut even deeper than whether they oppose or support a particular issue such as abortion; it suggests the continuing problem they present this year, next year and likely in the decades ahead (yes, decades due to a lifetime appointment).
News in July that seven Senators saw evidence that the FBI never investigated the more than 4,500 tips concerning sexual assault allegations against Kavanaugh was bad enough. So were all of his angry, emotional outbursts during his highly fractious confirmation hearing in 2018.
But Wednesday’s oral arguments showcased the confirmation gaslighting in his craven push to ascend to the court. He was the guy who told the Senate that Roe v. Wade was “settled as precedent.” He was the guy who underlined his point like this: “One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.”
But Kavanaugh’s charade was obvious to see once the Mississippi abortion law and the fate of Roe was on centerstage. He was now the guy who asked, “If we think that the prior precedents are seriously wrong,” does it not indicate “that the right answer is actually a return to the position of neutrality?” (As if protecting rights is not the court’s responsibility.) He went on: “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?”
Perhaps many of us—or even most of us—have become numb to the lying of politicians. But should we tolerate that same lying from Supreme Court justices in their determination to get one of those lifetime appointments? The presence of Clarence Thomas on the bench—he who denied the testimony of Anita Hill and lashed back with the questioning of him as a “high-tech lynching”—still stings.
And what of Justice Barrett and her speedy dedication to ending abortion rights? No one should be surprised that this was on her judicial bucket list. But it’s the particular way that she pushed her position that was so egregious. With state “safe haven” laws, she blithely suggested, who needs abortion rights when women can just put their newborns up for adoption?
Underscoring Barrett’s inability to grasp the painful choices a woman forced to bring a pregnancy to term faces, constitutional scholar Lawrence Tribe called it cruel, adding on Twitter, “She seemed oblivious to the Sophie’s Choice that presents.”
This surely wasn’t the first sign that this justice lacks awareness—and an utter absence of irony. “This Court is not comprised of a bunch of partisan hacks,” Barrett insisted at a September event at the University of Louisville’s McConnell Center. That center is named for none other than Mitch McConnell.
The court is not expected to make its decision until next July, just several months before the midterms when the real possibility exists of the Republicans retaking the majority in the House and Senate. It’s high time for a real conversation by President Biden about expanding the court.
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