The leaked draft of five conservative justices’ decision to overturn Roe v. Wade questions, as never before, the legitimacy of the Supreme Court in the eyes of the American public.
Judges have long been united across philosophical lines to express their respect for precedent and established law. But now everything is up for grabs. Americans have good reason to wonder whether rulings protecting the right to use contraceptives, or gay marriage, or the right to privacy are, in fact, the last word. In the eyes of the American public, political affiliation — not the Constitution — should now be seen as the determining factor in future Supreme Court decisions.
Perception matters because the Supreme Court’s legitimacy depends on public respect for its rulings, which until now have been expressed in images of black-robed jurists pensively poring over past legal cases and analyzing the writings of the founding fathers to carefully arrive at a fair balance and decision. Their mascot was Lady Justice, blind to outside political influence and carrying scales that tip only in favor of justice.
Today’s judges deserve to be seen as little more than robed politicians who have already made up their minds, often based on personal religious bias. The majority rationale in this case is that because the Constitution is silent on the issue of abortion, Roe v. Wade from 1973 cannot stand.
The author of the draft opinion, Judge Samuel Alito, was reluctant to fully embrace the concept of stare decisis, or respect for precedent. But he said at his confirmation hearing in 2006: “When a decision is challenged and reaffirmed, it reinforces its value. … There is wisdom in the decisions that have been made by previous judges. In fact, a majority of justices reaffirmed the Court’s position on abortion rights in their 1992 Casey decision. So much for the wisdom of previous justices.
Republican Senator Susan Collins of Maine on Tuesday expressed particular annoyance with Justices Brett Kavanaugh and Neil Gorsuch for signing Alito’s opinion. She said the two told her before their confirmations that they wouldn’t deign to guess what a majority of five members had previously decided. The joke was on her.
The fact that this unprecedented leak has occurred further undermines the public image of the court as a supposedly sophisticated deliberative body. Add to that a recent history of political subterfuge that determined the conservative balance of the court not because of the will of the people, but because Republican Senate Leader Mitch McConnell played the system in favor of Republicans.
Then there’s the fact that Alito got his job thanks to a president, George W. Bush, who didn’t win his first election but came into office thanks to a Supreme Court ruling in his favor.
Lady Justice might as well hang up the blindfold and throw away those scales. Statues, along with precedents and judicial wisdom, are for the birds.
Distributed by Tribune Content Agency, LLC.