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How the Supreme Court may become its own worst enemy

If the high court loses its grip on the rule of law, what role does it play in the constitutional system? 

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. 

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While the abortion providers say the hurdles to bringing a pre-enforcement challenge violate their rights, and the Supreme Court minority agrees, the majority says they’re not entitled to it. 

“This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court,” Gorsuch wrote last week. “In fact, general federal question jurisdiction did not even exist for much of this Nation’s history.” 

Wasserman said Texas has effectively channeled judicial review into a context where the federal district courts aren’t the beginning of the pre-enforcement review. Instead, they’ll have to use defensive litigation in state court. The risk is that unconstitutional laws will chill rights to the point that no one will challenge the law for fear of retribution. 

“The one risk is what if the situation we have on the ground here where no one actually is filing suit and the rights holders are afraid to violate the law because of the harshness of the sanctions and the remedies that lie at the end of it,” Wasserman said. “And that's why you have the stalemate that you have on the ground.” 

Justice Sonia Sotomayor wrote about the chilling effect on women’s rights in Texas in her partial dissent. 

“The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home state after their sixth week of pregnancy,” the Obama appointee wrote. 

As Wasserman sees it, however, the ongoing suits against the law show that the chilling effect has not prevented challenges. 

The assessment that this manipulation of pre-enforcement challenges will not have implications for the long-time legitimacy of the court is nowhere near universal. Some say by allowing this scheme to go forward in this way, the court is undermining its own authority.  

“The majority of this court seems bound and determined to ignore consequences in the high-profile decisions the court makes,” Richard Bernstein, an appellate lawyer, said in a phone call. “That may be okay for a given case here and a given case there, but in the long run, if all of the decisions this Supreme Court makes in important cases ignore consequences, the court may well wind up seriously undermining the very system they purport to be enforcing.” 

Upholding the court’s integrity isn’t important so that people necessarily like the court or its justices, the court holds a significant role in our constitutional system. 

“The legitimacy of the court as an end in itself is not what is important,” Bernstein said. “What is important is that there is some body outside of legislatures — which clearly can't hold the country together — that will try to hold the country together. Unfortunately, the majority of this Court has shown too little interest in holding the country together.” 

The court and its justices — whether they agree or not — have moved into a very political space. In a sense, they are working as just another political branch but one that is not beholden to voters and without term limits. 

“They're basically acting as another political branch of government, but a smarter political branch of government,” Gostin said. 

Sotomayor warned about the perception of the court acting as politicians during oral arguments this month. 

“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts,” the Obama appointee said. “I don't see how it is possible.” 

Decisions in controversial cases have often brought up questions about the court’s legitimacy — usually from the losing side. Whatever decision the court comes to later this year in a Mississippi case that directly asks the court to overrule Roe, someone will be unhappy and likely question the legitimacy of the court. But in the Texas case, the decision moves past just the right to abortion and questions if states can flout the rule of law without interference from the courts leaving the constitution and the rights it guarantees out in the cold. 

“To be very honest with you, it's a lose-lose for America,” Gostin said. “There's nothing good that can come out of this for any political party and the biggest loser is American democracy.” 

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