The leaked draft of five conservative justices’ decision to overturn Roe v. Wade calls into question, like never before, the Supreme Court’s legitimacy in the eyes of the American public. Justices have long been united across philosophical lines in voicing their respect for precedent and established law. But now, everything is up for grabs. Americans have good reason to question whether rulings protecting the right to use contraceptives, or gay marriage, or the right to privacy are, in fact, the final word. In the eyes of the American public, political affiliation — not the Constitution — should now be regarded as the determining factor in future Supreme Court rulings.
Perception matters because the Supreme Court’s legitimacy hangs on the public’s respect for its rulings, which until now have been couched in imagery of black-robed legal scholars thoughtfully poring over prior legal cases and parsing the Founding Fathers’ writings to carefully arrive at a balanced and fair decision. Their mascot was Lady Justice, blind to outside political influences and carrying scales that tip only in favor of justice.
Today’s justices deserve to be regarded as little more than robed politicians who have already made up their minds, often based on personal religious bias. The majority’s rationale in this case is that because the Constitution is silent on the abortion question, the 1973 Roe v. Wade decision cannot stand.
The author of the draft opinion, Justice Samuel Alito, has been reluctant to fully embrace the concept of stare decisis, or respect for precedent. But he stated during his 2006 confirmation hearing: “When a decision is challenged and it is reaffirmed, that strengthens its value. … There is a wisdom in decisions that have been made by prior justices.” A majority of justices, in fact, reaffirmed the court’s stand on abortion rights in their 1992 Casey decision. So much for prior justices’ wisdom.
Republican Sen. Susan Collins of Maine on Tuesday voiced particular displeasure with Justices Brett Kavanaugh and Neil Gorsuch for signing on to Alito’s opinion. She said both had told her ahead of their confirmations that they would not deign to second-guess what a five-member majority had previously ruled. The joke was on her.
The fact that this unprecedented leak occurred further undermines the public image of the court as a supposedly sophisticated deliberative body. Add to that a recent history of political subterfuge that determined the court’s conservative balance not because of the people’s will but because Senate Republican leader Mitch McConnell gamed the system in Republicans’ favor.
Then there’s the fact that Alito got his job thanks to a president, George W. Bush, who didn’t win his first election but got into office thanks to a Supreme Court ruling in his favor.
Lady Justice might as well hang up the blindfold and throw away those scales. Statues, along with precedent and judicial wisdom, are for the birds.
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