WASHINGTON (CN) — In 1803 the Supreme Court made a landmark ruling establishing judicial review. Over 200 years later its chief justice asks what happens when the majority of the court is willing to throw away that basic principle.
Chief Justice John Roberts worried — not for the first time — about the court’s legitimacy when he wrote a partial dissent in the court’s ruling on a near abortion ban in Texas last week. Roberts said the purpose and effect of the law were to “nullify this Court’s rulings” and then cited Marbury v. Madison which established the court’s supremacy over state legislatures.
“Indeed, ‘[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery,’” Roberts wrote. “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”
The Texas law — Senate Bill 8 — uses a unique enforcement mechanism that delegates its enforcement to citizens instead of government officials. This has complicated pre-enforcement challenges and hamstrung the judiciary from blocking its enforcement. The court ruled to allow the case to move forward on a very narrow ground leaving little room to block enforcement of a law that directly conflicts with the court’s precedents in Roe v. Wade and Planned Parenthood v. Casey. The ruling not only endangers abortion rights, it also creates a roadmap for any state legislature to make laws at odds with the court’s precedents without concern that they’ll be blocked.
“I think it's absolutely destructive to a rule of law and the court’s legacy and the integrity of the court,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a phone call. “Allowing the states to circumvent the Constitution, as Texas has done here, whether it's on abortion rights or another constitutional right, means that states can flout the Constitution without any consequences.”
The court has become increasingly politicized as battles over the confirmation of justices and stolen court seats have raged between politicians. Roberts has tried to maintain the integrity of the court through the polarizing political climate.
“I think one thing you have to understand about John Roberts is he's an institutionalist and believes the most important thing is to maintain the integrity of the Supreme Court,” Lawrence Gostin, a professor at Georgetown Law, said in a phone call. “Unfortunately, he is now in the minority.”
Some people — like Justice Neil Gorsuch — would disagree, however, with Roberts’ assessment that the court is allowing states to overcome judicial review. The first of former President Donald Trump's appointees to the high court argued in last week's lead opinion that there are still many paths to challenge SB 8 and that the challenge before them is how the process is supposed to work.
Howard Wasserman, professor of law and associate dean for research and faculty development at Florida International College of Law, said the judicial review is happening in the Texas case — it's just not happening on the terms that the providers want it to.
“It's not happening in the way that providers and reproductive-freedom advocates would like because it's not in federal court, it's not on their terms, it's going to happen more slowly, and they’re not able to get interim relief that would stop enforcement of the law pending the resolution of litigation,” Wasserman said in a phone call.