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,
-Vardibidian.
Jennifer Rubin’s editorial (https://www.washingtonpost.com/opinions/2021/12/02/supreme-court-faces-an-existential-crisis-legitimacy/) makes some salient points about what makes this particular situation with respect to the Supreme Court’s possible overriding of precedent in this case different from prior examples of the Court going against precedent. She argues, essentially, that in the past the Court has gone against precedent when there were clearly new facts or when a new social consensus had evolved, not because the membership of the Court had simply changed. While the establishment of facts and the development of social consensus are processes in which politics is involved (a point of your post would is that politics is involved in pretty much everything), there’s still an important distinction between the Court changing precedent on the basis of evidence that has developed in a political context and the Court changing precedent simply because a Court majority has the power to do so, absent any substantive new evidence.
A key element of this line of analysis is Ms. Rubin’s assessment that the arguments being advanced in the case for overturning the precedent of Roe v. Wade are “intellectually pathetic”; that is, they are radically insufficient to justify the exercise of power that the justices are contemplating. If justices cannot justify their decision, then that decision can hardly be just.
Ms. Rubin’s article provides a kind of standard for assessing the basis on which a precedent is reversed that may underlie Justice Sotomayor’s position. I don’t know how well justified by the history of the Court’s reasoning Ms. Rubin’s standard for the overturning of precedent is, or whether Justice Sotomayor’s own jurisprudence has adhered to a standard of this kind with respect to precedent, but I think the analysis is worth considering. At the very least, it provides a window into how a different Supreme Court might reason when they were presented with the case that asked them to overturn a precedent that had done away with women’s Constitutional right to bodily autonomy without approaching it as a nakedly political decision.
Didn’t mean to bold the whole last paragraph. Apologies for the shouting!
I think the nature of political institutions can vary in important respects, including responsiveness and accountability to the electorate, guiding principles, scope of power, and transparency. I don’t think the Supreme Court needs to be a super-legislature. If they are going to act that way, I’d prefer to see some changes such as direct elections of Supreme Court Justices. And I’m not sure what the need is for Congress in that case, or at least not the Senate, so let’s ditch the Senate and set a timeframe for evaluating whether we need to keep the House.
But regardless of the way Supreme Court Justices are chosen, the way they do their work, the powers they have, the reasoning they use, and the position they occupy in deciding what the rest of our government can do, they only have the right to do any of that if they are viewed as legitimate by a large majority of our country.
Legitimacy is a collective perception, and it’s pretty much gone at this point for a whole lot of aspects of our government. That’s a huge problem, because we can’t have a functioning democracy without legitimacy, and I think the alternatives are worse for our society.