Supreme Court Justice Stephen Breyer is currently on a tour to promote his new book, “The Authority of the Court and the Peril of Politics.” His thesis: The public misperceives the court’s role, and mistakenly attributes decision-making to desires of the president who appointed them.
In shorter takes, Clarence Thomas, now the senior justice, and Amy Coney Barrett, the newest, make the same argument: Politics stops following confirmation.
Methinks the justices protest too much.
At least since Bush v. Gore in 2000, when the Supreme Court twice interrupted the legal recounting of votes in Florida and awarded the presidency to George W. Bush, leaving the recount unfinished, it’s been hard to see the court as above, or even separate from politics.
The consequences of that unsigned 5-4 opinion, with all Republican-appointed justices in the majority, are still unfolding. Historical projections are speculative, but it’s impossible to see President Al Gore pursuing the “war on terror” as Bush did, or pretending global warming was no problem.
It’s ironic that, after former President Trump whisked three appointees through once then-Senate Majority Mitch McConnell scuttled the filibuster, it’s Democrats advocating “court packing.”
This recalls an ill-fated attempt by Franklin Roosevelt to add justices to “the nine” then beyond 70 years old. In theory, this could be done by one party – the number of justices, and the whole federal court apparatus, were created by Congress.
In practice, it would be impossible, making the struggle over the Senate’s $3.5 trillion budget bill look like a walk in the park.
For federal courts are already thoroughly packed – by the Republicans, who’ve striven to protect business interests ever since Lewis Powell, who represented the U.S. Chamber of Commerce, was appointed by Richard Nixon. It’s been a major focus for every GOP administration since, and almost Trump’s sole object.
Yet a seemingly lesser legal doctrine, women’s right to choose abortion, is the flashpoint of the current court. Trump claimed his appointees were committed to overturning Roe v. Wade, the sweeping 1973 decision that nullified the laws of 49 states and made abortion generally legal.
The court has chipped away ever since, and soon will hear arguments about a Mississippi law banning abortion after 15 weeks, which could upend Roe.
Now, the court has allowed to remain in effect an even more extreme law, from Texas, banning abortion at six weeks and removing the state from enforcement, theoretically evading Roe.
In another unsigned 5-4 opinion, the court declined to enjoin the law, but with Chief Justice John Roberts dissenting.
This puts pro-choice Republicans like Maine’s Sen. Susan Collins in a particular pickle. Despite fierce opposition back home, Collins voted to confirm Brett Kavanaugh, based on his private assurance he considered Roe “settled law.”
The Texas and Mississippi cases suggest the law is highly unsettled.
We may, in fact, be near a point where the court decisively overrules this 48-year-old precedent, which has been endangered for a long time.
From the beginning, there were criticisms of Roe as “legislating from the bench.” The lack of clear constitutional language, joined with the complex “trimester” regimen, did make it vulnerable.
The nation seemed to reach a consensus after the 1991 Casey decision limited, but didn’t overrule, Roe, telling states they couldn’t impose “an undue burden” on women. President Bill Clinton spoke for many in hoping abortion could become “safe, legal and rare.”
That consensus is long gone, as the parties have polarized perhaps more than on any other issue. Once, Democrats were as likely to object to abortion as Republicans, but no more.
While GOP-led states pushed near-total bans, Democratic legislatures like Maine’s have enacted Medicaid funding for abortion – a clear distinction from the federal Hyde Amendment, which since 1978 has barred using federal funds.
Maine House Speaker Ryan Fecteau was among 896 legislators from 45 states signing a brief supporting Roe as the Mississippi case proceeds.
Whatever one thinks about Roe, Congress will likely have to act. Having opposite legal doctrines in the states may not be Lincoln’s “house divided against itself” that produced civil war, but it’s no more tenable.
Amid many hurdles to necessary changes in federal law this may seem the highest, but the Supreme Court could replicate the moment which, ahead of public opinion in its day, Roe produced a durable “right to life” movement.
While conflicted about some aspects, the public still supports Roe and the freedom from onerous restrictions long permitted not only here, but around the world.
In a democracy, the public usually gets what it wants, however painful or extended the process. If the previously unthinkable occurs, a new “pro-choice” movement is sure to follow.
Douglas Rooks has been a Maine editor, commentator, reporter and author since 1984. His new book is “First Franco: Albert Beliveau in Law, Politics and Love.” He welcomes comment at drooks@tds.net.
Comments are not available on this story.
Send questions/comments to the editors.
