Saturday, February 4, 2023 | Back issues
Courthouse News Service Courthouse News Service

Will the Supreme Court survive the stench of overturning Roe?

As abortion rights are hanging by a thread while the country waits for the high court to make its ruling on Roe v. Wade, legal experts say the court’s legitimacy is on the same path. 

WASHINGTON (CN) — When the Supreme Court heard oral arguments in the biggest challenge to abortion rights to come before the bench in nearly 50 years, Justice Sonia Sotomayor asked if the court would survive the stench of conservatives wielding their supermajority to overrule Roe v. Wade. As legal experts examine a draft opinion that could eviscerate the federal right to abortion, they worry that the stink will hang forever on the court’s integrity. 

“We are seeing history unfold before our very eyes with the unraveling of the Supreme Court,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in an interview following the leak of a draft opinion of the court’s decision in Dobbs v. Jackson Women’s Health Organization

He continued: “The fact that you have a leaked opinion in such a highly politically charged case — and trashing a settled precedent and deep ideological divides — suggests to me that the stature of the Supreme Court is plummeting and public trust in it is similarly plummeting. I just don't know how it's possible to trust that the Supreme Court is following the rule of law and is simply, in Chief Justice Roberts’ words, calling balls and strikes. I think they have a political agenda.”

The draft opinion — written by Justice Samuel Alito — not only completely overrules Roe and the 1992 case Planned Parenthood v. Casey but opens the door for further restrictions on abortions even in states trying to protect the right. While disintegrating abortion rights, the majority appears to also create an opportunity to attack other rights related to privacy and autonomy. 

While outrage has exploded from abortion rights activists in the two days since the draft leaked, court watchers have been raising red flags about the court’s legitimacy in the years leading up to this moment for a myriad of reasons including the increased politicization of confirmation hearings and the justices' behavior on the bench. Experts say the court’s zeal to overrule the Roe precedent from 1973 just enhances the view that the justices are not neutral but rather politicians in robes. 

“The court's legitimacy has been under a magnifying glass for a while because there have been some really serious questions about its role in the American system,” Caroline Fredrickson, a distinguished visitor from practice at Georgetown Law and senior fellow at the Brennan Center for Justice, said in a phone interview. “We don't have a neutral judiciary anymore, an independent judiciary, what we have is a monarchy made up of unelected judges.” 

The court gets the final say on how the Constitution is interpreted, so it is within its right to overrule previous decisions and it has done so before. Alito specifically notes the court’s decisions in Brown v. Board of Education and Plessy v. Ferguson. But while the court has overruled cases in the past, that usually happens to give more rights to people instead of taking them away. Experts say the overruling Roe is a field apart. 

“I found the comparison between Roe and Plessy to be insulting and honestly pretty offensive,” Lindsay Langholz, director of policy and program at the American Constitution Society, said in a phone call. “I think that drawing the line there just wildly misread our history and the context of both of these cases. On top of that, I would say that none of the cases that he's referencing in this draft and just in history has the court granted a constitutional right and then taken it back.” 

Overruling precedent can also be a slippery slope. If a court continually overturns the decisions of its predecessors simply because they have a different view, it will lose credibility. 

ADVERTISEMENT

“They can overturn whatever they want,” Maya Sen, a professor at the Harvard Kennedy School, said in a phone call. “I think, from the perspective of the justices, it's unwise to go around overturning everything that they've ruled on because it makes them less credible moving forward, and people are less inclined to follow the rulings. The idea of fostering legitimacy is really important to them because, otherwise, no one will listen to them. But that's about the only thing holding them back.” 

While the conservatives have a supermajority on the court now, that isn’t set in stone. If the court makes a habit out of overruling decisions it doesn't agree with ideologically, it's likely the opposing wing will just undo all their work when they return to the majority. 

“This draft opinion, if it becomes the law, will degrade the role of the Supreme Court perhaps forever,” Richard Bernstein, an appellate lawyer, said. “The stability provided by our judicial system of justices modestly deferring to precedent will be replaced by cycles of ideological payback. Liberal justices will be in the majority someday and they will overrule this decision.”  

The court has held Roe for nearly 50 years while also reaffirming it through Casey. Legal experts say overturning it now that the conservatives have a majority confirms the notion that the justices are acting on their political views. 

“It shows that he [Alito] doesn't really have a whole lot of respect for the process of legal reasoning, the idea that we proceed in a way that recognizes the value of precedent in our system,” Fredrickson said. “He had an outcome he wanted, and it doesn't really seem like it matters much what the law might say about that.” 

The independence of the judiciary is key to its role in the constitutional system, but experts say the justices are now acting more like just another political branch. 

“It confirms, I think, the fears that so many of us have had about this court being one that is excessively politicized and partisan,” Fredrickson said. “It seems now we're jumping both feet into the deep end of partisanship and rancor over the role of the court.” 

Unlike other political branches, however, the justices don’t have term limits or answer to voters. 

“The Supreme Court will become worse than the Senate — two warring tribes in a perpetual war, except with no need to ever face the voters, no six-year terms, and no compromising,” Bernstein said. “That would be a disgrace and harm our country.” 

The justices will not have to face the wrath of voters directly for their decision to overrule Roe. This is especially problematic because the majority of Americans do not agree with the decision to overrule the precedent. A Washington Post-ABC poll found that 54% of Americans think Roe should be upheld while only 28% want to see it overturned. 

“If things move forward and this looks a lot like the final opinion that's issued by the court, this is going to be very unpopular among the large swaths of the population,” Sen said. “It is absolutely going to impact the court's approval, and it's particularly going to impact the court's approval among liberals and Democrats who have actually expressed a lot of faith in the Supreme Court.” 

Experts say it's more clear now than ever that the court has an ideological agenda and that will hurt those on both sides of the ideological spectrum. 

“The mask that the Supreme Court used to have, of integrity, fairness, nonpartisan, had simply been swept away,” Gostin said. “As it is being swept away, its public stature is plummeting and the stench is in the air.” 

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...