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.