Abortion was front and center before the Supreme Court a
couple of weeks ago: Dobbs v. Jackson
Woman’s Health Organization. The case under consideration was a Mississippi
law that bans abortions after the fifteenth week of pregnancy. The state
legislature wrote it specifically in the hope that the Supreme Court would
overturn Roe v. Wade.
Dobbs v. Jackson may not have been the most important issue on the December 1, 2021 docket. Democracy may have been on trial!
One side of the argument believes that life begins at conception and therefore abortion is murder. The other side believes a woman should have the right to terminate a pregnancy with few if any exceptions. Roe v. Wade 1973 upheld a woman’s right to an abortion. So much for context.
One never knows what the Court will rule until it does, but based on the oral arguments, many believe Roe will be overturned. U.S. law relies heavily on stare decisis, (to stand by things decided). Lower courts rely on Supreme Court decisions for their rulings. It explains why SCOTUS rarely overturns its previous rulings. It has done so only 300 times in its history. Few of those changed decisions changed the country, but there were some big ones!
We learned about those rulings in high-school history or civics classes; Plessy v. Ferguson 1896, and Brown v. Board of Education 1954 come to mind. How is Roe different?
Remember Marbury v. Madison 1803, when the Court said, “It is explicitly the province and duty of the Judicial Department to say what the law is,” so it was, and so it has been for over 200 years. The Supreme Court has no army to marshal adherence to its decisions or a police force to enforce its rulings. All it has is the respect of the people for the institution, faith in the Constitution, and an insistence on being a nation of laws. If the populous believes the court is making unfair decisions, or that it is making political-based decisions, it loses its power.
For several decades some people played a long-game strategy to overthrow Roe. To do that they relentlessly convinced voters to elect them to state legislatures, to governorships, and to Congress. If they got enough control over government ruling bodies, they could elect a president who supported their efforts. It wasn’t hard to do. The pro-choice population didn’t see it coming until it was too late or they didn’t believe that anyone would seriously attack a ruling in effect for over fifty years.
Presidential candidate Trump vowed to appoint judges who were loyal to him and who would overturn Roe. In one term, fate allowed him to appoint three justices who were admittedly anti-Roe. Trump referred to them as “his” judges. And that is a problem, irrespective of which political party claims that “his” judges will rule for them.
Justices traditionally try to position themselves as non-political. The truth is that presidents nominate justices who are consistent with their political party’s positions and usually avowed party loyalists. Nominees pledge to congressional committees, however, that they can’t talk about cases that might come before them and they won’t commit to how they might vote in any case, except that they always say that stare decisis will be their north star; they won’t overturn precedent. Once seated on bench most adhere to that oath. The oral arguments in Dobbs, however, suggest that a fifty-year ruling will be thrown out the window.
Justice Sotomayor identified the issue from the bench; pundits sounded the alarm across the political divides. Another institution that holds the nation together, that promises us a democracy, could be relegated to the trash heap of unbridled partisanship. Without at least the perception of non-partisanship, will the justices simply be mouthpieces for whichever party nominated them? Will the court simply resemble the political systems of Peron, Pinochet, Amin, Stalin, or Honecker? In each case, “his” courts all ruled in favor of whatever the dictator wanted. We can’t afford the loss of this institution.
The Harvard University Kennedy School’s Institute of Politics survey of young adults released a couple of weeks ago, found that 52% of 18-30-year-olds already believe our democracy is in trouble or has failed. Seventy percent of Republican young adults believe the democracy has failed. Rather frightening is that nearly 50% of young adults seriously believe that there is a greater than 50% chance of a second civil war in their lifetime. Survey participants who lived in rural areas were more likely to feel that democracy is failing. Depending on which poll you read, between 50-64% of this age group opposes overturning Roe.
Civil rights cases argued before the Court always deal with increasing people’s rights, not taking them away. If Roe is overturned it will send shock waves through the nation. If one doesn’t think that democracy is working, if they disagree with government programs and rulings, taking up arms doesn’t seem that farfetched.
They tried it on January 6, 2021.
If the Supreme Court uses Dobbs v. Jackson to overturn Roe, rescinding an established civil-right of long-standing, it might well determine if we will be a democracy ten years from now.
[i] Justice Sotomayor’s comment toward the end of oral arguments in Dobbs v. Jackson, December 1, 2021
