Justice Sotomayor drops the S-bomb, opens a debate about the Court’s legitimacy

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NYT

Critical Moment for Roe, and the Supreme Court’s Legitimacy

As justices consider Mississippi’s restrictive abortion law, scholars debate what a reversal of Roe v. Wade would mean for the court’s credibility.

By Adam Liptak
Dec. 4, 2021

WASHINGTON — Donald J. Trump, who appointed three Supreme Court justices while president, vowed that they would help overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. In arguments on Wednesday, there were more than a few signs that Mr. Trump had succeeded.

The court’s three Democratic-appointed justices, sounding anguished and angry, said that overruling Roe soon after a bare-knuckled political campaign to change the court’s membership would represent a tipping point, one from which the court’s legitimacy could not recover.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked.

If the Supreme Court is perceived to be made up of politicians rather than judges, Justice Stephen G. Breyer said, “that’s what kills us as an American institution.”

The case illuminates competing and shifting conceptions of the role of the court. For decades, conservatives have argued that Roe amounted to judicial activism, announcing a right not found in the Constitution and overriding the political process to achieve an outcome that politicians would not.

Now, after nearly half a century in which that right has been woven into the societal fabric, the argument may have come full circle, with many liberals saying that a decision by the court to eliminate the right to abortion would amount to flagrant political activism.

Both arguments are grounded in concerns about the court’s legitimacy, which were brought into sharper focus by Wednesday’s proceedings.

“Questions about the court’s legitimacy are more pitched than they ever have been,” said Melissa Murray, a law professor at New York University.

Should the court overrule Roe, she added, it will represent a turning point signaling that “the court has been weaponized for political purposes.”

But Nicole Garnett, a law professor at Notre Dame, said there was just one sound way to assess the status and stature of the court.

“The only real measure of the court’s legitimacy is whether the justices are following their oath to uphold the Constitution and the rule of law,” she said.

Overturning Roe, she added, would let states decide whether and when to allow abortions. “The court would enhance its credibility and legitimacy as a judicial rather than a political body,” she said, “if it returned the question of abortion regulation to the people.”

As those dueling perspectives reflect, there is no consensus about what legitimacy means. Richard H. Fallon Jr., a law professor at Harvard and the author of “Law and Legitimacy in the Supreme Court,” said there were two primary definitions.

One is moral, expressing a judgment about whether the court deserves to be respected. The second is sociological, based on whether people trust the court to make fair and unbiased judgments. Only that second sense, he said, can be captured in public opinion polls.

Recent polls — taken after the court allowed a Texas law that bans abortions after six weeks to take effect in September, but before Wednesday’s arguments — suggest that Justices Sotomayor and Breyer were right to worry about the court’s standing.

A Quinnipiac University poll last month found that 61 percent of Americans said the Supreme Court was mainly motivated by politics, while 32 percent said it was mainly motivated by the law. Three years ago, the corresponding numbers were 50 and 42 percent.

A Gallup poll in September found that only 40 percent of Americans approved of the job the court was doing, the lowest rate since 2000, when Gallup first posed the question.

A Marquette Law School poll found a 12-point drop in public approval of the Supreme Court, from 66 to 54 percent, in a little more than a year.

Charles Franklin, a law professor and political scientist at Marquette who oversaw the poll, said the plummeting numbers were a threat to the court’s authority.

“Anytime the court is ruling on highly controversial measures, it needs that sense of legitimacy and compliance, especially from other political actors,” he said. “Look at the resistance to Brown v. Board of Education, for instance, as an example of when compliance is not automatic.”

Southern states for years refused to follow the Brown decision, which banned segregation in public schools, as they engaged in what came to be known as “massive resistance.” Billboards calling for the impeachment of Chief Justice Earl Warren, who wrote the court’s unanimous decision, were commonplace.

The Brown decision is now almost universally viewed as a towering achievement. But its enforcement required President Dwight D. Eisenhower to decide to send members of the 101st Airborne Division to Little Rock, Ark., to escort Black students through an angry white mob.

Not all presidents gave the court’s rulings the same respect. In 1832, President Andrew Jackson refused to enforce a Supreme Court decision arising from a clash between Georgia and the Cherokee Nation. A probably apocryphal but nonetheless potent comment is often attributed to Jackson about Chief Justice John Marshall: “John Marshall has made his decision; now let him enforce it.”

President Biden has appointed a commission to study potential changes to the court, and it is expected to issue a report this month assessing options like expanding its size or imposing term limits on the justices. Such changes could gain more support among Democrats if the court overturns Roe, though they would require congressional action or a constitutional amendment.

Professor Franklin said the court’s current authority was fragile.

“What does the court do with neither the sword nor the purse?” he asked, paraphrasing Alexander Hamilton. “What would happen if there were widespread unwillingness to abide by the court’s decisions?”

The last time a majority of justices on the Supreme Court were appointed by Democratic presidents was in 1969, three years before the birth of its newest member, Justice Amy Coney Barrett.

That lasting dominance by Republican-appointed justices was a consequence of happenstance and hardball. The last two Democratic presidents before Mr. Biden, for instance, served two terms and appointed two justices each, or one per term. Mr. Trump appointed three in his single term, creating a conservative 6-to-3 supermajority.

Mr. Trump was aided by a Republican Senate that blocked President Barack Obama’s third nominee, Merrick B. Garland, and rushed the confirmation of Mr. Trump’s own third pick, Justice Barrett, in the waning days of his presidency.

Still, complete partisan polarization at the Supreme Court, mapping onto similarly deep divisions in Congress and the electorate, is a relatively recent phenomenon. Before 2010, the political parties of the presidents who appointed Supreme Court justices did not reliably predict how the justices would vote.

Republican presidents have often appointed justices who were or would turn out to be liberals. Among them were Chief Justice Warren and Justices William J. Brennan Jr. and Harry A. Blackmun, the author of the majority opinion in Roe.

But it has been more than 30 years since the last such appointment, of Justice David H. Souter in 1990. And it has been almost 60 years since a Democratic president last appointed a justice who often voted with the court’s conservatives: Justice Byron R. White, who was nominated by President John F. Kennedy in 1962.

In 2010, Justice John Paul Stevens, a liberal appointed by President Gerald R. Ford, a Republican, retired. He was replaced by Justice Elena Kagan, a liberal appointed by Mr. Obama, completing the partisan polarization at the court. Every Republican appointee was now more conservative than every Democratic one.

But the effect was moderated by the presence of a swing justice. Until his retirement in 2018, Justice Anthony M. Kennedy, who was appointed by President Ronald Reagan, a Republican, occasionally joined the court’s liberal wing in decisions on gay rights, abortion, affirmative action and the death penalty.

Chief Justice John G. Roberts Jr., appointed by President George W. Bush, a Republican, briefly seemed poised to take on that moderating role. But then Justice Ruth Bader Ginsburg died last year and was replaced by Justice Barrett, giving Republican appointees a lopsided majority.

A decision in the case argued on Wednesday, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, concerning a Mississippi law that bans most abortions after 15 weeks of pregnancy, is not expected until late June.

Professor Fallon said it was hard to think of an apt comparison to a decision overruling Roe.

“I am not sure there is a good historical analogy to Dobbs and the worries about Supreme Court legitimacy that it has inspired,” Professor Fallon said. “But if there is, it would need to involve an issue that was simultaneously politically and morally divisive and that involved very high stakes.”

“A possible comparison,” he said, “would be to Dred Scott v. Sandford, presenting the question whether Congress had the power under the Constitution to ban slavery in the territories. The underlying dispute in that case ultimately led to the Civil War.”

Professor Murray said that neither the notorious Dred Scott decision, with a majority opinion written by Chief Justice Roger B. Taney, nor decisions striking down President Franklin D. Roosevelt’s New Deal programs were quite apt.

“This moment strikes me as really different from the Taney court, really different from the New Deal court, really different from the Warren court and Brown,” she said. “In those moments, it felt like the court was acting for itself and not in the service of some other project in which it was only a vessel or a pawn.”

Professor Garnett said the court should act for itself in the Mississippi case — by overruling Roe.

“When the court straightforwardly upholds the Constitution and stays within its proper role, despite the possibility of negative publicity, as it did in Brown v. Board of Education, its legitimacy is reinforced,” she said. “A negative reaction does not mean that the court has done something illegitimate. It may mean the opposite.”

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But Nicole Garnett, a law professor at Notre Dame, said there was just one sound way to assess the status and stature of the court.

“The only real measure of the court’s legitimacy is whether the justices are following their oath to uphold the Constitution and the rule of law,” she said ....

Overturning Roe, she added, would let states decide whether and when to allow abortions. “The court would enhance its credibility and legitimacy as a judicial rather than a political body,” she said, “if it returned the question of abortion regulation to the people.” ......

Professor Garnett said the court should act for itself in the Mississippi case — by overruling Roe.

“When the court straightforwardly upholds the Constitution and stays within its proper role, despite the possibility of negative publicity, as it did in Brown v. Board of Education, its legitimacy is reinforced,” she said. “A negative reaction does not mean that the court has done something illegitimate. It may mean the opposite.”

No surprising, from a professor working at Notre Dame.

And conveniently ignoring the fact that much had changed in America between 1896 when Plessy vs. Ferguson was decided and 1954 when Brown vs. Board was decided, whereas as Justice Sotomayor noted last week, nothing has changed since 1973's Roe decision, except perhaps that an even greater % of Americans in 2021 now support the Roe holding.