An Unsurvivable Stench?
Justice Sandra Sotomayor asked what many of us are thinking during oral arguments on Mississippi's controversial abortion restrictions.
With the exception of the original Roe v Wade decision in 1974, you likely have to go back almost seventy years to Brown v Board of Education if you want to find a case argued before the Supreme Court that will impact as many American lives as what the Justices found on their docket today.
Mississippi Department of Health v Jackson Women’s Health Organization will determine, in all likelihood, whether or not a woman in the United States has a guaranteed right to an abortion at all. We’ve moved long past the “undue burden” of Casey, and The Nine will ultimately decide if it will take the rare step and reverse its own precedent.
How rare? University of Minnesota Constitutional Law professor David Schultz analyzed over 25,000 SCOTUS cases (boy, that sounds like a fun way to spend your Summer Vacation!) and concluded:
(F)rom 1789 to 2020 there were 25,544 Supreme Court opinions and judgments after oral arguments. The court has reversed its own constitutional precedents only 145 times – barely one-half of one percent.
Armed with the knowledge of how sacrosanct Supreme Court president has been since Chief Justice John Marshall decided it should be in 1803, it’s worth asking if the body should overturn Roe, regardless of the obvious fact that it can.
It’s important to note that overturning precedent in and of itself is not necessarily a bad thing, nor does it have to be shady or subversive. Schultz (an excellent read, by the way) sums it up succinctly when asked:
For most of its history the court changed its mind only when it thought past precedent was unworkable or no longer viable, perhaps eroded by its subsequent opinions or by changing social conditions.
Let me be clear right away: this is not about my personal opinion on whether or not a woman deserves bodily autonomy (of course she does). This is about the credibility of the Supreme Court and whether or not it can be preserved as a valued institution in an era when so many of our other institutions seem to be crumbling.
Justice Sonia Sotomayor asked a poignant question during the Mississippi arguments, and the more I think about it, the more it feels as if she wasn’t questioning The Magnolia State’s Solicitor General Scott Stewart as much as she was questioning you and I:
It’s worth noting that there are likely millions of Americans who already consider the Court to be “political hacks”. But let’s apply Schultz’s argument that the existing decision is “no longer workable”.
Roe was a 7-2 decision when the decision was handed down in 1973. If and when THIS Court rules, it’s likely to be struck down by a 6-3 or 5-4 margin, depending on how much Chief Justice John Roberts can stomach the diminishing perspective of his Court.
But in what legal sense are the rights guaranteed by Roe “no longer workable”?
The only thing that continually makes a woman’s access to her own health decisions unworkable is the constant barrage of new restrictions, burdens, prohibitions, and flat-out dirty tricks from governors and state legislators.
Again, this isn’t about personal preference. It’s about preserving (what’s left of) the integrity of the highest court in the land.
Schultz gives us two additional ways in which the Court has reversed itself: When its subsequent decisions nullify the original rulings, and when social mores change.
We know through Casey that the many attempts to nullify Roe have left the right to choose valid and in good standing. So we can quickly dismiss that.
So let’s look at changing social conditions. I’m sure there are polls from 1973 about personal views on abortion, but I haven’t seen them. But what I have seen is the data that the Pew Research Center (a genuinely reputable think tank) has made readily available, and going all the way back to the (glorious) year of 1995, we know this:
In 1995, 60% of Americans believed abortion should be “Legal in all/most cases”. 38% said it should be “Illegal in all/most cases”.
In 2021, 59% of Americans believe abortion should be “Legal in all/most cases”. 39% said it should be “Illegal in all/most cases”.
That’s a substantial change in public opinion? 1%? The margin of error? Over a quarter century? Come on. Don’t pee on my leg and tell me it’s raining.
Justice Sotomayor has every reason to fear the Court being held in the same regard the public holds Fox News or MSNBC - partisan beyond any attempt to even hide it. And when you look at how we got here, it’s easy to see why.
Five justices - a majority! - were appointed by Presidents who failed to even secure the popular vote of the American people: Roberts, Justice Samuel Alito, Justice Neil Gorsuch, Justice Brett Kavanaugh and Justice Amy Coney Barrett. Now you can say “fine, it’s just a fluke that a president who only served one term got three while a pair of two termers got 2.”
Except the one-term guy didn’t get three.
We don’t need to reiterate the unjustifiable shenanigans that Senate Majority Leader Mitch McConnell pulled when then-President Obama nominated Merrick Garland to fill the seat vacated by Justice Antonin Scalia upon his February 2016 passing. It’s not outrageous to say that the Court clearly became “just political hacks” at that moment, albeit through no technical fault of their own. The remaining 8 justices can’t force the Senate to hold a confirmation vote, regardless of the fact that the Constitution specifically charges them with that exact responsibility.
Religious conservatives have played a very long game to get to this point - I recommend reading “The Nine” by legal analyst (and famous Zoom-masturbater) Jeffrey Toobin to understand the depths of their preparation. It’s actually quite impressive and you have to admire their dedication, I guess.
But reversing precedent is usually reserved for cases like Brown, which finally struck down the despicable Plessy v Ferguson decision that legalized segregation.
Are we going to take the same technique that finally began to allow us to reconcile with our past sins and then use it to deprive over 51% of Americans of a right they have had for over half a century?
I’m not rooting for the Court to uphold Roe because of my belief in reproductive rights. I’m doing so because if they decide to strike down the rights of every woman in America, what’s stopping them from a further rollback of liberties we’ve grown up with and are fully accustomed to.