The Majority’s Damage to the Supreme Court Cannot be Undone

With only 25% of Americans having expressed confidence in the U.S. Supreme Court in Gallup's latest survery, the Court is at an all time low in public approval.  And that survey predated yesterday's elimination of a constitutional right that had existed for 50 years.  Worse yet, yesterday's ruling suggests that any right that the extremist majority views as not having existed in the 1860's - or 13th century in the mind of Justice Alito - may be eliminated in future rulings.  The American Taliban - all that's missing are scraggly beards and head scarves - now controls the Court and short of congressional legislation securing rights, no one's rights are safe.  The questions now before us become (i) whether compacent voters will seek vengence on the Republican Party that is responsible for placing extremists on the Court, and (ii) will citizens ignore the Court's ruling in every manner possible.  The prestige and respect for the Court is likely irreversibly destroyed for at least a generation or until the Court is enlarged and the extremist put into a minority position.  A column in the Washington Post looks at the damage the extremist majority has brought upon the Court.  Here are highlights:

The Supreme Court’s decision to eliminate the constitutional right to abortion is an unfolding tragedy for American women and an indelible stain on the court itself. The harm to women is immense but can be ameliorated with efforts in the public and private spheres to safeguard access to abortion. The damage to the court cannot be undone.

This radical conservative [extremist] majority — unheeding in this case even of the conservative chief justice — has proven itself unmoored from the rule of law, and therefore unworthy of the public esteem that can be its only source of enduring authority.

With the vote of five justices to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, American women have lost a right that was guaranteed them for a half-century, an unprecedented elimination of an individual freedom.

Justice Samuel A. Alito Jr., writing for the majority in Dobbs. v. Jackson Women’s Health Organization, trumpeted the overruling as a way to “return the issue of abortion to the people’s elected representatives.” That is precisely the problem. Deciding whether to continue with an unwanted pregnancy is an intimate moral choice — one that should be left to the individual who would be forced to carry the pregnancy to term, not to the whims of the government in whatever state they happen to live.

The three liberal justices, in a joint dissent, powerfully underscored the implications of the court’s action. “Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” they wrote. “Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. … But no longer. As of today, this Court holds, a State can always force a woman to give birth . . . .

[T]he emergence of medication abortions — the method in 54 percent of cases — means the risks to women’s lives and health will be less than they were in the years before Roe. The mailbox will become the new back alley. With educational outreach and funding, many women would be able to obtain these drugs.

None of that is to diminish the outrage of the court’s action and the ugly underlying reality: The critical thing that has changed is the composition of the court itself. “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” the dissenters assert. “The majority thereby substitutes a rule by judges for the rule of law.” That is an astonishing indictment of their conservative colleagues, but it is fully justified.

Will they stop at abortion? The majority forswears any interest in going after other rights similarly grounded in the right to privacy. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” it insists, arguing that abortion presents a distinct case because of the “destruction” of “potential life.”

This would be more convincing if Alito, the author of the opinion, hadn’t joined Thomas in a statement just two years ago lamenting that the same-sex marriage ruling, Obergefell v. Hodges, had supplanted states’ ability to address the issue, much as he says about abortion. And the court’s insistence that the Constitution only protects rights that are “deeply rooted in history” would apply with equal force to contraception or same-sex marriage. “Either the mass of the majority’s opinion is hypocrisy or additional constitutional rights are under threat,” the dissent says. “It is one or the other.”

My guess is hypocrisy. But who knows what this majority is capable of. Every day its radicalism reveals itself.