Can the US Supreme Court survive overturning Roe v. Wade?

WASHINGTON—Outside of the US Supreme Court building on Sunday, a weekend of protests continued under the hot sun, as they had here and in cities across the country ever since the ruling overturning the abortion protections of Roe v. Wade was announced on Friday.

The overwhelmingly pro-choice crowd chanted “Abortion is health care!” and many demonstrators carried signs reading things like “Her body de ella, her choice de ella” and “Keep your laws out of my uterus.” But among them were a prominent number of signs with a less issue-specific sentiment: “F— SCOTUS,” for example, and “Abort the Court.”

These sentiments that didn’t just object to a decision but crudely questioned the legitimacy of the court itself were in line with a growing strain of opinion in the US in which trust and support for the court are at all-time lows, and its decisions. are seen more widely as based not in law, but in naked political partisanship.

A wave of polls show it: a Gallup poll this month showed confidence in the Supreme Court plunging to an all-time low of 25 per cent, a Marist Poll for NPR and PBS also conducted this month showed 68 per cent of respondents indicating not much or little confidence in the court versus only 29 per cent who have a “great deal” or “a lot” of confidence (an almost complete reversal of the numbers from 2019), and a YouGov poll for CBS showed much the same thing.

Part of that is directly related to the abortion decision, which is overwhelmingly unpopular: 59 per cent of those in the YouGov poll opposed overturning Roe v. Wade. But another part of it is the public’s understanding of what’s motivating this and other court decisions. Asked in the Marist poll what they thought was behind the decision, 57 per cent said it was “mostly based on politics” versus only 36 per cent who thought it was “mostly based on law.”

This is a perception that some of the court’s own justices have been warned against.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor said in December when the court was hearing oral arguments in the abortion case it ruled on this month. She pointing out that the only thing that had changed since the precedents involved had been decided and confirmed was the partisan composition of the court. The three-judge minority echoed this in its dissent of the ruling, accusing the majority of substituting “a rule by judges for the rule of law.”

Even Chief Justice John Roberts, appointed by a Republican, and who voted with the majority opinion in the case at hand, seemed to fear this. In his concurring opinion of him, he said he feared the majority had gone too far in overturning Roe v. Wade entirely.

“The court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases,” he wrote, noting that in overturning the precedent, it upends pillars of the court’s decision-making process. He’s the chief justice, so the legitimacy of the court itself is one of his primary concerns about him. His fellow Republican-appointed justices appear not to share them.

They have, in fact, been busy over the past week issuing unpopular opinions that overturn long-standing precedents and legal tests in ways that align with Republican culture war goals. On Monday, the court threw out the long-standing “Lemon test” of church-state separation in a case involving school prayer; a week ago, it similarly ruled a state might be compelled to fund religious private schools; in a New York gun control case last week, the court ruled the 110-year-old requirements for permits to carry handguns did not align with history enough to be an allowable restriction of the right to bear arms.

Quite obviously, the court’s Republican supermajority is flexing its partisan muscles.

Poll respondents say they expect it to do so further: in the YouGov poll, a majority of respondents said they expected the court to go on to limit access to birth control and outlaw same-sex marriage. People have good reason to think that: in his own concurring opinion in the abortion case, Justice Clarence Thomas explicitly said the court should revisit the cases that protected access to birth control, legalized same-sex intimacy, and allowed for same-sex marriages.

It is seen as partisanly political, because it obviously is. This all comes after an open and widely discussed decades-long effort by Republicans to stack the court with partisan conservative jurists, which culminated in Mitch McConnell and Donald Trump effectively “stealing” seats (by refusing to confirm an Obama appointee in the last year of his presidency, and then rushing to confirm a Trump appointee in the dying days of his) to form the current conservative supermajority. The result is a form of minority rule, in which justices appointed by a president who never earned a majority of the popular vote — and confirmed by a Senate whose structural advantage in that chamber means they represent a minority of voters — overturn laws that are supported by a majority of Americans.

The hyperpartisan polarization of the US over the past decade or so has long undermined faith in Congress, and has recently undermined faith in the presidency and electoral system. It has now claimed another victim, in the public legitimacy of the Supreme Court that is supposed to act as a referee in political and legal disputes.

Sotomayor’s December question — “can this institution survive the stench” of partisan politics? —is an essential one for Americans. Increasingly, you can ask it about virtually all of the institutions that make up American democracy, and perhaps about American democracy itself.

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