The supreme court is a messy institution. Its six conservative justices are mired in infighting over both the pace of their shared ideological project of remaking American law and life according to rightwing preferences, and over their preferred methodological course for doing so. Their squabbling is not helped by the fact that two of them, Clarence Thomas and Samuel Alito, keep embarrassing the court with gauche public scandals, which draw attention to the court’s legitimacy crises like a vulgar flag waving above One First Street. For their part, the liberals are exhausted, impotent and at times apparently publicly despairing. Their dissents have sometimes taken on tones of exasperation and peeved sarcasm, as if they’re turning to the country and asking: “Can you believe this?” Their most senior member, Sonia Sotomayor, recently told an interviewer that over the past several terms, since the court’s conservative supermajority was sealed under the Trump administration, she has sometimes gone into her chambers after the announcement of major decisions and wept. She says she anticipates having to do so again: in one recent dissent, she warned ominously about the future of gay marriage rights.
The court’s partisans like to point out that it controls neither the military nor the federal budget; the court’s legitimacy, they say, comes merely from the fact that people believe it to be legitimate. But increasingly, many of them don’t. The court’s approval rating remains at record lows, and the justices’ conduct over the past several years has punctured the mystique of scholarly seriousness that the institution once pretended to. They don’t seem like wise legal scholars, carefully and dispassionately deliberating the merits of competing interests and claims. Instead, they seem more like a bunch of bumbling partisan hacks – perhaps just more cynical and less clever than the average Republican operatives stuffed into suits throughout DC.
The court did not appear particularly competent, for instance, when on Wednesday, a draft opinion in Moyle v United States was briefly uploaded to the court’s webpage. The case concerns Idaho, which has one of the most extreme and sadistic anti-choice legal regimes in the nation, and asks whether states’ attempts to ban abortions even in cases of medical emergencies can be pre-empted by Emtala, a federal law regulating emergency rooms. After it was uploaded, the opinion was quickly taken down; in a statement, a supreme court spokesperson said that the opinion had been uploaded briefly by mistake. By then, Bloomberg news had already obtained the full text of the draft, and it was published soon thereafter.
This makes the third time in recent memory that an opinion in a high-profile supreme court case was leaked before its official release. The first was when Alito reportedly told a conservative movement activist friend of his upcoming decision in 2014’s Burwell v Hobby Lobby, a case that struck down the Affordable Care Act’s contraception coverage mandate for religious employers; the second was when the draft of Alito’s majority opinion in Dobbs was leaked to Politico almost two full months before it was ultimately issued by the court. All three of these leaks have been in cases pertaining to women’s reproductive rights.
But if the court is bumbling in their functioning, embarrassing in their public personas and obviously fractious in their internal relations, then the leaked order in Moyle also shows that the conservative majority can be quite calculating in their political strategy. In the draft decision, issued per curium (that is, unsigned), the court dismisses the case as improvidently granted, and sends it back down to the lower courts. They include the restoration of a lower court order that had allowed emergency abortions to continue in Idaho hospitals while the case proceeds. For now, that means that women experiencing failing pregnancies in Idaho will still be able to get the care they need to preserve their health, their fertility and their lives; hopefully, emergency room doctors there will feel safe enough to actually perform the procedures, and patients will no longer have to be airlifted out of the state to receive the routine care that will stabilize them. That’s what’s most important for the American public: that for the time being, lives will not be needlessly lost in service to the anti-choice agenda.
But to the court’s conservative majority, what seems to be most important is pushing the abortion issue – and an inevitable ruling that eventually will allow states to ban emergency abortions – past the November election. The decision in Moyle was transparently a compromise between the court’s three liberals, who wanted to preserve women’s lives, and the three more pragmatic conservatives – John Roberts, Brett Kavanaugh and Amy Coney Barrett – who wanted to preserve Donald Trump’s electoral chances. These conservatives know that a ruling saying that states can allow women to bleed out, suffer septic infections, have seizures from eclampsia, lose the function of their uterus and ultimately die – out of deference to preserving what by then are already doomed, futile pregnancies – would hurt Republican candidates in this November’s elections. That doesn’t mean they don’t want to issue such a murderous ruling; it means that they want to do so at a more politically convenient moment.
So three of the court’s conservatives are acting like Republican political strategists, working to conceal their own legal agenda in order to minimize harm to their preferred party in an election year. That would be bad enough. But not all of the court’s conservatives can exercise even this degree of cynical, self-interested restraint. Although the order was issued per curium, Alito dissented, arguing that the state ban on emergency abortions should be enforceable under federal law; he was joined by Thomas and Neil Gorsuch. Some of his reasoning was echoed by Barrett, whose concurrence, studded with handwringing concerns as to whether Emtala sufficiently protected the conscience rights of anti-abortion doctors and whether it could pre-empt a state criminal law, read like a road map for anti-choice lawyers seeking to re-argue the issue at a later, more politically amenable time. (Another sign of the court’s dysfunction – how often opinions are now accompanied by a flurry of dissents and concurrences, with each of the justices seemingly very eager to publicly distinguish their own thinking from that of their colleagues.)
Together, their writings made it clear that though the court’s conservatives are split – sometimes fiercely and peevishly so – over how fast to proceed, they agree over their ultimate goal: one day, probably sooner than we think, this case will come back, and the supreme court will allow states to ban emergency abortions. What follows will be blood on their hands.
