In yesterday’s hearing, Justices Sotomayor, Kagan and Breyer all made the case that overruling Roe would lead people to think that the Law and the Constitution was a simple matter of who had the most political power at the moment—that is, that the court, in Kagan’s words, is “a political institution”.
It is a political institution.
The alternative, it seems to me, is to say “hey, you can organize and persuade people, and vote, and get a majority in the Senate and also the White House and get your nominations through, but you can’t influence actual policy, so don’t bother.” The entire reason why the case is being heard is that a large number of citizens feel strongly about that policy and have engaged in politics—in participatory self-government—to put the policy in line with their preferences.
Now, I personally think it’s atrocious to compel a person to carry a pregnancy to term if that person doesn’t want to do that. And I do think that this is a case of rights—one of the cases where even if the majority (vaddevah dat means) wants to deprive a group of some specific right, the majority should be restrained from doing that. But that act of restraint isn’t some sort of “apolitical” magic; it’s a highly political act in itself, that ultimately draws political legitimacy from the citizenry wanting to keep that principle in place more than they want to deprive that group of its rights.
Which, in the case of today’s argument, means that I want that subset of the citizenry who believes in the principle of equal protection under law and in the right of individuals to determine their own medical care and in the division between religious belief and public policy to _regain_ the political institution of the court, and, yes, to overturn the precedent that this court is going to set in June, simply because that precedent will be wrong. And I simply can’t imagine that if there once again is, in four or eight or eleven years’ time, a majority of Justices who agree with me on this issue, that Justices Kagan and Breyer and Sotomayor (long may they live and serve) would prefer to shrug and keep whatever terrible precedent the 2022 Court will set, rather than allow politics into the Judiciary.
Tolerabimus quod tolerare debemus,