The Supreme Court's legitimacy crisis is here

BERLIN  —  According to a recently leaked draft majority opinion in Dobbs v. Jackson Women’s Health Organisation, the US Supreme Court’s conservative supermajority is poised to overturn the Court’s landmark 1973 decision in Roe v. Wade. Barring any radical revisions to the draft, the majority would eviscerate half-century-old constitutional protections for abortion, leaving women vulnerable to the whims of state legislatures.

Republican-controlled legislatures are already eager to impose new prohibitions. Almost half of US states can be expected to establish absolute or near-absolute abortion bans. Many states already have so-called trigger statutes ready to go. Yet, despite the American right’s obsession with women’s wombs, no law will be able to put an end to the practice of abortion. Instead, these laws will return America to more primitive times, with more women crossing state lines or seeking “illegal” procedures to receive proper care. Others, one can expect, will not receive it and will die or be injured as a result.

In Roe, the Supreme Court struck down a state-level abortion ban on the grounds that it violated a woman’s constitutional right to privacy. But though the judgment was widely celebrated, it had flaws that left it open to attacks from conservatives. In his leaked opinion, Justice Samuel Alito gleefully points to the fact that even the late Ruth Bader Ginsburg, a liberal icon and pioneer for women’s rights, had critiqued the Roe decision’s basic rationale.

It is indeed unfortunate that the Roe decision’s architect, Justice Harry Blackmun, chose to base the constitutional protection for abortion on privacy, a right that has no clear textual basis in the US Constitution, rather than on equality. The latter would have been a far more stable foundation, since women can easily demonstrate that being deprived of choices about their own bodies is a denial of their right to “equal protection”, as guaranteed in the 14th amendment.

A Dobbs ruling reversing Roe could be the first domino in a succession of cases that also rest upon the right to privacy. For example, the Court could try to revisit decisions on contraceptives (Griswold v. Connecticut), same-sex marriage (Obergefell v. Hodges), and even mere same-sex relations (Lawrence v. Texas).

When Donald Trump ran for president in 2016, he vowed to nominate justices who would overturn Roe and assert the values of the American religious right. This was one of the few promises that Trump fulfilled. His nominations of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett have transformed the Court, pushing an already conservative-leaning bench across the line into extremism. Showing little regard for longstanding precedent, including a precedent that some explicitly promised to respect in their confirmation hearings, the current Court appears to be on a mission to turn America into a Christian theocracy.

The conservative majority’s activism will have devastating consequences for millions of Americans. But it also reveals the systemic flaw in America’s Constitution, which enabled Trump to make and deliver on such a promise in the first place. In any properly functioning democracy, the judiciary’s authority rests largely on the fact that it is seen to be a neutral arbiter of the law, guided by immutable principles of justice, rather than partisan preferences or personal religious beliefs.

To be sure, this is an impossible ideal. No mere mortal can completely set aside morality or ideology, and there will always be disagreements about the precise meaning of laws, constitutional clauses, or even the facts of a case. But it is a judge’s job to strive for the ideal by setting aside his or her personal preferences and beliefs.

In America, however, the ideal has been abandoned. Federal judicial nominations have become deeply partisan and politicised. No longer are Supreme Court justices and federal judges confirmed by overwhelming, bipartisan Senate majorities. Instead, most scrape by with the votes of just one party. Trump’s three appointees received a total of four Democratic votes between them, and President Joe Biden’s nominee, incoming Associate Justice Ketanji Brown Jackson, won the support of only three Republicans.

In most other liberal democracies, judges have significant authority to interpret their country’s constitution, and they exercise it without descending into partisan rancor. Just across the US border, the Canadian supreme court has managed to hand down decisions on highly divisive issues (such as prisoner voting rights and euthanasia) without its legitimacy being called into question.

The Biden administration’s Presidential Commission on the Supreme Court had an opportunity to call attention to the Court’s flaws and propose reforms to de-politicise it. But the commission demurred and instead offered a useless report that was immediately forgotten. Supreme Court justices thus will remain mere “politicians in robes” for the foreseeable future.

It is not undemocratic for judges to serve as the ultimate arbiters of a country’s constitution. When judges are motivated by the pursuit of justice, not ideology, they act to safeguard individual rights from the tyranny of the majority. But once they have been compromised by partisanship, outrageous conflicts of interest, and rank ideology, it becomes difficult, if not impossible, to reclaim the public’s trust.

Roe’s legal reasoning may have been problematic, but its outcome was not. The US Constitution specifically establishes the right to equal protection under the law. The justices signing on to the Dobbs opinion have decided that this right is less important than the religious values abortion opponents are seeking to impose on all Americans. They apparently have no concern for the women who will die from unsafe abortions, or for the children who will be born to families that cannot or will not care for them.

If it becomes law, Dobbs will devastate lives across America. One can only hope that the outrage it sparks will ignite support for the reforms the Court so desperately needs.

Nicholas Reed Langen, a 2021 re:constitution fellow, edits the LSE Public Policy Review and writes on the British constitution for The Justice Gap. Copyright: Project Syndicate, 2022. 

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