It Already Stinks

Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?Associate Justice Sonia Sotomayor, during oral arguments in Dobbs v. Jackson Women’s Health Organization, December 1, 2021.

Picture by Hilary Stone Ginsberg

Associate Justice Sonia Sotomayor posed this trenchant question during oral arguments over a Mississippi abortion law that may be the vehicle for the U.S. Supreme Court to overturn a nearly 50-year precedent guaranteeing a constitutional right to abortion.

The justice’s question is premised on the obvious fact that not much has changed since the 1973 landmark Roe v. Wade. There have been no vast scientific or medical advances regarding the procedure. No novel legal theories have emerged on whether the Constitution does or does not protect a woman’s right to choose. Public opinion has hardly shifted on the issue for the last 50 years. Only one thing has changed. The Supreme Court now has a majority of very conservative justices who are determined to restrict, at least severely, access to abortion if not overturn Roe outright.

Sotomayor rightly worries that a purely political decision on such a controversial issue as abortion endangers the existence of the high court. “If people actually believe that it’s all political, how will we survive?” she asked. “How will the court survive?” The concern over the politicization of the pending decision — expected next June or July — is buttressed, as Sotomayor pointed out, by the admission of the bill’s sponsors that they passed the law only because there are new, very conservative justices on the court.

The stability of public opinion on abortion is remarkable. Since 1975, the percentage of Americans who believe abortion should be legal in at least certain circumstances has hovered between 76 percent and 83 percent, while the percentage who would ban the procedure in all circumstances has remained consistently in the high teens. Not only would a high court decision allowing states to ban (or severely limit) abortion be a political decision, it would be a political decision that runs counter to the views of a large majority of Americans. 

The politicization of the court’s pending decision on abortion is magnified by the politicization of the court itself. There are a majority of conservatives on the court even though Democratic presidential candidates won the popular vote in seven of the last eight presidential elections. Two presidents who were in the office only because of the Electoral College nominated five of those justices. To put it bluntly: The Supreme Court is dominated by conservative jurists appointed by presidents elected by a minority of voters. 

And, then there are the machinations of Republican Senate leader Mitch McConnell who — in a display of brazen political power lacking either constitutional or historical justification — manipulated senatorial rules to prevent President Barack Obama from appointing a successor to Associate Justice Antonin Scalia. McConnell’s flimsy rationale: Scalia died in the last year of Obama’s term in office. When Associate Justice Ruth Bader Ginsburg died less than two months before the 2020 election, McConnell tossed his new standard out the window so he could rush the confirmation of Amy Coney Barrett before the electionthans. 

Barrett, perhaps sensitive to the political nature of her appointment, gave a recent speech in which she claimed, “This court is not comprised of political hacks.” She added, “Judicial philosophies are not the same as political parties.” I might give more credence to Barrett’s words had she uttered them some place other than the University of Louisville’s McConnell Center. Yep, that McConnell, the senator who strong-armed her appointment to the Supreme Court!

Overturning Roe, which appears likely based on the questions the justices asked Wednesday, will be the capstone to a alarming number of political decisions made by the Supreme Court in the last two decades. Bush v. Gore was premised on legal arguments, as one academic phrased it, that “would further the election of the Republican candidate, George W. Bush.” Citizens United reversed century-old campaign restrictions previously upheld by the courts, again an instance of the only thing that changed was the makeup of the court itself. The same can be said of the high court’s ruling in 2013 in Shelby County v. Holder which gutted the Voting Rights Act of 1965.

Chief Justice John Roberts wrote the majority opinion in Shelby County, and while he is often viewed as an institutionalist who believes the court should tread carefully and incrementally, he is a longtime antagonist of the 1965 voting law. So, in a signal of the political brazenness of the current conservative majority, the Roberts-led court eviscerated another section of that law in Brnovich v. Democratic National Committeedecided last Junefurther tipping the electoral scales in favor of the Republican Party by allowing states to deny whole groups of Democratic-leaning voters access to the ballot. 

In addition to the pending abortion decision, the Supreme Court is slated in the current term to hear highly political cases involving the right to carry concealed weapons outside the home, the fate of affirmative action, and a religious case that could erode the separation of church and state. As the recent past indicates, and the possible future may buttress, the conservative majority on the Supreme Court issues political decisions frequently.

Unfortunately, Justice Sotomayor, there is already a stench issuing from the Supreme Court. The likely overturning of Roe is a political act, but the high court already stinks because of its numerous political acts — and the politicization of its makeup — over the last few decades.

Posted December 3, 2021