During Supreme Court arguments on the Mississippi abortion case, which has now resulted in a draft ruling reversing the Roe v. Wade precedent, Justice Sonia Sotomayor issued an ominous warning.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked. “I don’t see how it is possible.”
POLITICO’s historic scoop last Monday — the dynamite leak of a 5-3 decision permitting each state to adopt its own abortion laws — lobbed a grenade into the mid-term elections. President Biden called for Congress to codify abortion choice, which had been protected by court precedents for nearly 50 years, and to do it quickly before Democrats lose what little control they now have.
That would probably require abolition of the Senate filibuster — a whole different question, with implications far beyond abortion. In their haste to embody abortion choice in statutory law, Democrats should remember anything they do now the Republicans can reverse — or do more of — when they regain control next year.
The House passed its “Women’s Health Protection Act,” codifying the protections of Roe, last year but the Senate declined to take it up. Sens. Joe Manchin of West Virginia and Bob Casey of Pennsylvania are the Democrats standing in the way — while Republican Sen. Lisa Murkowski of Alaska and Susan Collins of Maine would be expected to break ranks with the GOP and side with pro-choice forces.
The women should feel betrayed, having voted for Justices Brett Kavanaugh and Neil Gorsuch with the expectation they’d leave abortion alone. All three Trump appointees were among the justices overturning Roe in the leaked draft opinion.
As Sotomayor warned, the abortion case has renewed complaints that the Supreme Court has gone from adjudicating to politicking. That probably surprises all Americans who get most of their news from Sesame Street.
We may wish the judiciary could be some Grecian temple of philosophical pure reason, issuing wisdom from a lofty plane high above the gut-punching and eye-gouging of partisan politics. But it’s not.
Was it politics when Eisenhower won support of the California delegation to the 1952 Republican National Convention by signaling he’d appoint Gov. Earl Warren to the Supreme Court? Was it politics when Warren retired, and Lyndon Johnson tried to make his pal Abe Fortas chief justice and put his Texas crony Homer Thornberry on the court in 1968?
Andrew Jackson ignored an 1832 Supreme Court edict, saying of the chief justice, “John Marshall has made his decision; now, let him enforce it.” Franklin Roosevelt called the court “the nine old men” and tried to pack it with new blood more amenable to his New Deal.
And now there are renewed rumblings of adding more justices to get what the Democrats want.
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Nixon didn’t even try to hide his southern strategy in appointing Judges Clement Haynesworth of South Carolina and G. Harrold Carswell of Tallahassee in 1970. Was it politics when Reagan tried to put Robert Bork — the villain of the Watergate-era Saturday Night Massacre — on the bench?
How about President Obama’s choice of Merrick Garland, which was blocked by a Republican Senate? Or Trump’s three choices? Was Biden’s campaign promise to name the first Black female justice any more, or any less, political than Trump’s commitment to appointing anti-Roe judges?
How about the smear campaigns mounted against Kavanaugh and Justice Clarence Thomas during their confirmation hearings? Or Senate Majority Leader Charles Schumer, D-N.Y., shouting threats against justices — by name — at the courthouse steps?
Of course, those were things done to the court by politicians, not actions of the justices themselves. But in its most volatile rulings — from Dredd Scott before the Civil War through the 1954 school-integration case and today’s abortion furor — the court has often been thrust into politics.
This time, polls show about 70% of Americans support abortion choice. If the Republicans want to line up with the other 30%, that’s their choice — and their court.
It’s too bad the high court can’t be a temple of pure reason and apolitical justice. Too bad our laws are not influenced solely by some idealistic awareness of what the country needs, what the people deserve. But politics is what we’ve got, the way we govern the country.
Politics is not the “stench” that Justice Sotomayor called it. It’s just a lamentable reality.
Bill Cotterell is a retired Tallahassee Democrat capitol reporter who writes a twice-weekly column. He can be reached at firstname.lastname@example.org
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