The current Supreme Court’s partisan moment rivals Bush v. Gore
By Joan Biskupic, CNN legal analyst & Supreme Court biographer
The country is not ready for what’s coming next from the Supreme Court.
Individual justices themselves say it.
The court’s message to the country in recent months has smacked of politics. Most conspicuously, the justices have repeatedly rejected requests to prevent a Texas abortion law that outright conflicts with women’s constitutional rights under the 1973 Roe v. Wade. The remade conservative majority also appears ready to strike down New York gun control regulations and require state aid for religious schools in Maine.
This moment has been building for years, as the politicized confirmation process delivered justices with firmer ideologies and agendas. But the court’s right turn has been startlingly accelerated by the abortion-rights controversy. What makes this juncture so fraught is the politicized circumstances, the threat to precedent and the warnings from justices themselves.
Former President Donald Trump vowed to appoint justices who would oppose abortion rights and overturn Roe v. Wade, and all three of his appointees appear to be working toward that goal with speed.
More than anything in recent years, the justices’ actions in abortion cases from Texas and Mississippi have belied Chief Justice John Roberts’ adage of 2018, in retort to Trump himself: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
While the Texas dispute has suspended abortion rights in that state, a pending Mississippi case would have nationwide ramifications. During oral arguments on December 1, a majority appeared ready to overturn the half-century old Roe v. Wade, which made abortion legal nationwide. The justices in 1973 said the 14th Amendment’s guarantee of privacy covers a woman’s right to terminate a pregnancy in the early stages.
The current situation recalls, and perhaps rivals, the Bush v. Gore controversy of 2000, when dissenting senior Justice John Paul Stevens lamented the loss of “the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
Last week in the Texas abortion case, dissenting Chief Justice Roberts warned, “it is the role of the Supreme Court in our constitutional system that is at stake.”
The 2000 case resolving the disputed Florida presidential election results and ensuring then-Texas Governor George W. Bush won the White House over then-Vice President Al Gore shook the country. The legal issues were largely contained, despite the obvious national implications. The case was decided 5-4 along ideological, if not political, lines.
Today’s disregard for precedent and the potential domino effect in other cases suggests a whole new era at America’s high court.
Justice Sonia Sotomayor regularly warns the country about the court’s direction. “This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions,” she wrote last Friday. “I doubt the Court, let alone the country, is prepared to them.”
Roberts as naysayer, however, is new.
“The clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings,” he said of the Texas abortion ban, adding, with language from an 1809 precedent, that if other states “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.”
Sign of the times
It is a sign of this court’s rightward march that Roberts, a conservative Republican appointee, agonizes over the turn of events.
President Joe Biden’s bipartisan commission on Supreme Court reform, which issued a cautious, measured report last week without concrete recommendations, highlighted the politics of the moment and questions of court legitimacy.
It emphasized how much power individual justices now hold (serving for an average of 26 years, up from an average 15 years in the 1960s) and the investment of the dueling political parties in who is appointed.
“The highly polarized politics of the current era threaten to transform this already high-stakes process into one that is badly broken,” the commission wrote, saying that the current calls to expand the size of the court trace to 2016 when Senate Republicans refused to act on President Barack Obama’s nomination of Judge Merrick Garland.
After the GOP-controlled Senate shut out Garland, it sped through Trump’s choices of Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020.
Those three new justices, augmenting a prior right-wing tilt, have altered public expectations for both sides of such culture war issues as abortion, guns and religion.
During the Mississippi arguments earlier this month, Kavanaugh diminished the value of precedent and, shunning the right enshrined in 1973, imagined a Constitution that would be, in his words, “neutral … neither pro-choice nor pro-life.” His words clashed with his 2018 Senate testimony, when he professed respect for Roe and related cases.
In a separate, contentious area of the law, the conservative majority has increasingly allowed mixing of church and state. In recent oral arguments, it appeared ready to strike down a Maine education program that provides vouchers for public and private schools, but not those with a sectarian religious curriculum.
Liberal Justice Elena Kagan stressed the distinct nature of the program serving students in isolated areas and raised the risk of a sweeping decision directing taxpayer money to religious schools that exclude non-Christians and LGBTQ students: “These schools are overtly discriminatory. They’re proudly discriminatory. Other people won’t understand why in the world their taxpayer dollars are going to discriminatory schools.”
Unlike with the new abortion-rights controversy, the shift toward conservative religious interests has been developing for years. And the pattern on church-state dilemmas is not without caveat, as seen this week when the justices brushed away religious objections to New York’s vaccine mandate.
Siding with doctors and nurses who protested that the mandate lacked any religious exemptions, Gorsuch wrote in dissent: “We should know the costs that come when this Court stands silent as majorities invade the constitutional rights of the unpopular and unorthodox.”
The shift on abortion rights has prompted the greatest internal recriminations and public outcry. It became evident on September 1 when the court by a 5-4 vote let Texas go forward with a law that prohibits abortion after the detection of a fetal heartbeat, at roughly six weeks. State lawmakers have tried to shield themselves from federal lawsuit by turning over enforcement of the law to private citizens.
That tactic outraged Roberts and the three liberals who dissented in September and also from last week’s decision that largely disadvantaged the abortion clinics seeking to prevent the law from being used against them.
Gorsuch and fellow conservatives in the majority expressed scant concern for Texas insulating itself from legal responsibility, and, alternatively, found the clinics’ position troubling, as they seek to block the ban that could lead to devastating liability. “Troubling,” Gorsuch wrote, “the petitioners have not offered any meaningful limiting principles for their theory.”
Under S.B. 8, any person can bring a case against a physician or anyone who assists a woman in obtaining an abortion after six weeks; it allows a minimum of $10,000 in damages for successful suits.
The Gorsuch bloc permitted lawsuits against one group of state officers, certain licensing officials, but kept S.B. 8 in place. Roberts said the law had already chilled the provision of abortions in Texas, denying women rights that the court had previously upheld.
The separate case from Mississippi involves a ban on abortion after 15 weeks. While less restrictive than the Texas statute, it blatantly conflicts with the court’s abortion-rights decisions prohibiting states from interfering with a woman’s choice to end a pregnancy before a fetus reaches viability, that is, can live outside the womb, at about 23 weeks.
Roe v. Wade set the fetal-viability cutoff, and it was reaffirmed in the 1992 decision known as Planned Parenthood v. Casey. The majority then, five justices who happened to be Republican appointees, took account of all the political pressure on them to reverse precedent. As they declined, they emphasized the importance of stability in the law.
The 1992 adherence to Roe, Kagan observed during this month’s arguments in the Mississippi case, helped “prevent people from thinking that this Court is a political institution that will go back and forth depending on what part of the public yells loudest and … will go back and forth depending on changes to the Court’s membership.”
But changes in the membership have now transformed America’s highest court. As precedents dissolve, people can only guess where the court will go next.
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