The legitimacy of the United States Supreme Court has been deeply pierced, and it may never recover its stature in the eyes of Americans.
For Chief Justice John Roberts, whose concern for the institution’s reputation is evident in almost every opinion he writes and every public speech he gives, these developments is a disaster of the highest order.
Not only does it appear that the five most conservative members of the court, including three new appointees to former President Donald Trump, are poised to overturn half a century of constitutionally grounded abortion rights. It appears that Politico, the company that published the first draft of the opinion in the Dobbs v. Jackson Women’s Health Foundation, has bypassed longstanding court privacy and security protocols.
Such a violation of opinions at this early stage of the drafting process is unprecedented. And it comes in a seismic case that is vital to American lives, one that could affect so many women and their families, and in one case that could rearrange the landscape. politics, which only makes the whole episode more startling.
The unusual circumstances have the potential to cause distrust among judges and could affect negotiations on other pending cases to be resolved by the end of June. Also pending a decision are disputes. controversy over gun control, religious rights and the Biden administration’s immigration policy.
The Chief Justice called it a “betrayal” and said the Marshal of the Court would investigate.
“This is a egregious and bizarre breach of that trust, which is frustrating for the Court and the community of public servants working there,” Roberts said in a statement.
The integrity of the court has been shaken, with public approval rates falling to a record.
The conservative majority in the nine-member bench, coupled with a lack of transparency regarding potential conflicts of interest and some basic court business, has prompted the congressional change proposals. in the high court. Those range from a formal code of ethics for judges to, significantly, an expansion of the number of seats to offset the dominance of the far right.
Within the court itself, recent sessions have been marked by finger pointing and retrial between judges. Liberals and conservatives have questioned each other’s motives in the cases, and the six justices on the right are sometimes bitterly divided. Roberts, who before October 2020 took control as ideologically mediating justice, increasingly faces derision by conservatives and exclusion from personal opinions. core.
Violation of new court secrecy may initially cause judges to close their ranks, as they often do in the face of outside scrutiny and criticism. But it can erode trust among the nine more seriously when a blame game kicks in.
CUSTOMIZED CARE FOR LIMITED LIMITED RIGHTS ONLY
The right to abortion in the United States dates back to 1973, when a 7-2 high court ruled that the constitutional right to privacy, rooted in the Fourteenth Amendment, included the right of women to end of pregnancy.
The judges firmly reaffirmed that core right in 1992, reinforcing the principle that states must not interfere with a woman’s ability to have an abortion before the fetus is viable out of the womb. mother, at about 23 weeks. Even the judges who have criticized Roe say it’s important to stick to precedent, for institutional reasons and because, quite simply, Americans have relied on it.
Polls continue to show a majority of Americans oppose the reversal of Roe and Wade.
The current court, however, has gone in the opposite direction. Trump, who has campaigned against Roe, was able to appoint three right-wing judges in a row. The first in 2017, Neil Gorsuch, won a seat because Senate Republicans in 2016 blocked any action on President Barack Obama’s selection of Appeals Judge Merrick Garland when that of the United States.
Trump promoted Brett Kavanaugh in 2018, and then in late 2020, following the death of staunch libertarian Ruth Bader Ginsburg, he won Senate confirmation of Amy Coney Barrett just days before the November presidential election.
Their appointment, along with conservative veteran Justices Clarence Thomas and Samuel Alito, argue that it is inevitable that the new court will limit reproductive rights.
The far-right force on many legal issues also shunned Roberts, who had been an opponent of abortion rights. He has increasingly shown concern that the bench might be skewed too far to the right, and he increasingly finds himself siding with the liberal wing, Judges Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Before Monday night’s bombings, sources told CNN that Roberts was opposed to completely overturning Roe and was working toward a compromise that would likely uphold the disputed Mississippi law that limits abortion after 15 weeks – but keep the Roe parts intact.
Sources say that Roberts has – so far – been unsuccessful with the newest judges, Kavanaugh and Barrett, two who have shown some hesitation compared to their brethren on the right. It is difficult to know how solid other draft opinions may have been circulating among judges or how firm some judges’ positions have been since the Mississippi case was argued on December 1.
DRAMA AFTER SCENELS
There could be a few more weeks of negotiations before the traditional summer break for the bench. But disclosing draft comments in such a chaotic manner could disrupt any further efforts by Roberts.
Abortion cases in history have been fraught with behind-the-scenes twists and turns. In the year 1992 Planning Parenthood in Southeast Pennsylvania sues Casey case, in late May when Justice Anthony Kennedy sent a letter to Justice Harry Blackmun to tell him developments that would please Blackmun, the author of Roe.
Just a month before the opinion was published on June 29, Kennedy wrote to Blackmun: “I need to see you as soon as you have a few moments to spare. I would like to tell you about some developments. in Planned Parenthood suing Casey, and at least part of what I say will turn out to be welcome news.”
In that 1992 case, Kennedy and GOP-appointed colleagues Sandra Day O’Connor and David Souter wrote a joint opinion affirming Roe’s essential role, even if there were some contradictions.
The trio asserted: “Men and women of conscience can disagree, and we assume that some will always disagree, about the deep moral and spiritual implications of terminating pregnancy, even even in the early stages, the most basic principles of ethics, but that cannot control our decisions. Our duty is to define the freedoms of all, not to impose regulations our own code of ethics.”
Perhaps anticipating this moment, Kagan was constantly arguing and commenting from the bench about the importance of adhering to precedent.
When the court sticks to its landmarks, even those that some oppose, in arguments in an April case unrelated to abortion, it can escalate, Kagan asserts. legitimacy of the court and how it operates” and spoke “in a profound way. of the court as an institution and its role in society.”
She suggests that reversing a milestone, “would have a disturbing kind of effect,” not only on people’s understanding of the relevant area of the law concerned, “but also on their understanding of the law.” everyone’s knowledge of the court itself.”
In his apparent first draft February 10, Alito denied adhering to customary court precedent, writing that Roe v. Wade did not deserve the same consideration.
“Roe was seriously wrong from the start. Its reasoning was particularly weak and the decision had serious consequences.”
“And far from delivering a national solution to the abortion issue, Roe and Casey have sparked controversy and deepened divisions,” Alito stressed.
