1). “Behind the Scenes at the Dismantling of Roe v. Wade”, Dec. 15, 2023, Jodi Kantor & Adam Liptak, New York Times, at < https://www.nytimes.com/2023/
2). “Supreme Illegitimacy”, Oct 10, 2022, Eric W. Orts, The Regulatory Review, at < https://www.theregreview.org/
3). “How The Supreme Court Is Destroying Its Own Legitimacy”, Jan. 25, 2023, William W. Taylor, III, Guest Contributor, Alliance for Justice, at < https://www.afj.org/article/
~~ recommended by dmorista ~~
Introduction by dmorista: This morning the casket with the body of former Supreme Court Justice, Sandra Day O'Connor, was carried into the Supreme Court Building; to lie in state in the Lobby there. All nine of the current justices stood, with their best solemn facial expressions, for about a half hour to honor her. O'Connor was the first woman justice on the Supreme Court. She was a classic “Country Club Republican” but was much less extreme than the current majority. Of course the soleminity and dignity of this ceremony contrasts sharply with the tawdry partisan hack nature of the current reactionary and “on-the-take” reality of the U.S. Supreme Court.
Three days ago the New York Times published the article in Item 1)., “Behind the Scenes ….”. That article discussed much of the minutiae of the tactics and scheming to overturn Roe v. Wade that energized the Forced-birth Movement in general and the 6 reactionary justices in particular. The article is a good read, and the NYT seems to have dropped the paywall as the general importance of the article has become more apparent.
In Item 2)., “Supreme Illegitimacy” the author advances some substantive criticsm of the current court and proposes some remedies. He posits 3 areas of legitimacy and authority that the Court, to one degree or another, possesses, these are Legal legitimacy, Empirical political legitimacy, and Substantive political legitimacy. He writes about the greivous damage done to these pillars of legitimacy for the Court:
“Owing to its decisions at the end of its last term, the Supreme Court has lost legitimacy along all three dimensions. Most decisively, the Court has lost its substantive political legitimacy by preventing the government from protecting the right to life of millions of Americans against gun violence, reproductive health risks, and degenerative climate consequences.
“My argument that the Court has wrongly decided these cases is not simply a legal or constitutional one. It is an argument based in political and democratic theory that the current Court has lost its substantive political legitimacy, thus mandating its structural reform.”
As a remedy he suggests three main areas of reform: “Expand the Court to 13 justices”, (specifically 4 new justices for President Biden to nominate and get confirmed), “Establish 18-year term limits for justices”, and “Set a mandatory retirement age of 75”.
In Item 3). “How The Supreme Court ….” another liberal legal analyst severely criticizes the current Court, writing that:
“The six justices in the majority have signaled that they intend to select and decide cases in a way that advances goals of the far right, notwithstanding the pretense of calling 'balls and strikes.' They have now issued multiple decisions in which they unashamedly torture precedent and rely upon biased recitations of history to support their desired outcome. There’s no denying this Court and its supporters care more about the results than the reasoning.
“When justices vote on a specific case as the president who nominated them promised they would, the public justifiably perceives that this branch of government is no less political than the other two. When the explanations for their votes appear to be shallow or disingenuous, the skepticism mounts further. ….
“This Court’s conservative majority is clearly committed to arriving at its preferred results. As Professor Tribe said, 'when they’ve got the votes, they don’t even care about the reasoning.' It also seems that they do not care about the decline in credibility for which they are responsible. They are imposing an agenda and feigning impartiality.” (Emphasis added)
Abortion Rights have been the focus of media and Democratic Party operatives attention. But the far-right 6 person majority is making a wide variety of decisions that relentlessly favor the rich and powerful and attack the lives of the poor, vulnerable and working class people of the U.S.
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(apologies from NB - I can't get this article formatted to fit within the blogger guidelines... :-( )
Behind the Scenes at the Dismantling of Roe v. Wade, NY Times
Behind the Scenes at the Dismantling of Roe v. Wade
By Jodi Kantor and Adam Liptak Dec. 15, 2023 New York Times
https://www.nytimes.com/2023/12/15/us/supreme-court-dobbs-roe-abortion.html
On Feb. 10 last year, Justice Samuel A. Alito Jr. showed his eight colleagues how he intended to uproot the constitutional right to abortion.
At 11:16 a.m., his clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women’s Health Organization. After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.
But this time, despite the document’s length, Justice Neil M. Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett M. Kavanaugh. None requested a single alteration. The responses looked like a display of conservative force and discipline.
In the months since, that draft turned into a leak, then law, then the rare Supreme Court decision that affects the entire country, reshaping elections, the practice of medicine and a fundamental aspect of being female. The story of how this happened has seemed obvious: The constitutional right to abortion effectively died with Justice Ruth Bader Ginsburg, whom President Donald J. Trump replaced with a favorite of the anti-abortion movement, Justice Barrett.
But that version is far from complete. Justice Barrett, selected to clinch the court’s conservative supermajority and deliver the nearly 50-year goal of the religious right, opposed even taking up the case. When the jurists were debating Mississippi’s request to hear it, she first voted in favor — but later switched to a no, according to several court insiders and a written tally. Four male justices, a minority of the court, chose to move ahead anyway, with Justice Kavanaugh providing the final vote.
Those dynamics help explain why the responses stacked up so speedily to the draft opinion in February 2022: Justice Alito appeared to have pregamed it among some of the conservative justices, out of view from other colleagues, to safeguard a coalition more fragile than it looked.
The Supreme Court deliberates in secret, and those who speak can be cast out of the fold. To piece together the hidden narrative of how the court, guided by Justice Alito, engineered a titanic shift in the law, The New York Times drew on internal documents, contemporaneous notes and interviews with more than a dozen people from the court — both conservative and liberal — who had real-time knowledge of the proceedings. Because of the institution’s insistence on confidentiality, they spoke on the condition of anonymity.
At every stage of the Dobbs litigation, Justice Alito faced impediments: a case that initially looked inauspicious, reservations by two conservative justices and efforts by colleagues to pull off a compromise. Chief Justice John G. Roberts Jr., a conservative, along with the liberal Justice Stephen G. Breyer, worked to prevent or at least limit the outcome. Justice Breyer even considered trying to save Roe v. Wade — the 1973 ruling that established the right to abortion — by significantly eroding it.
To dismantle that decision, Justice Alito and others had to push hard, the records and interviews show. Some steps, like his apparent selective preview of the draft opinion, were time-honored ones. But in overturning Roe, the court set aside more than precedent: It tested the boundaries of how cases are decided.
Justice Ginsburg’s death hung over the process. For months, the court delayed announcing its decision to hear the case, creating the appearance of distance from her passing. The justices later allowed Mississippi to perform a bait-and-switch, widening what had been a narrower attempt to restrict abortion while she was alive into a full assault on Roe — the kind of move that has prompted dismissals of other cases.
The most glaring irregularity was the leak to Politico of Justice Alito’s draft. The identity and motive of the person who disclosed it remains unknown, but the effect of the breach is clear: It helped lock in the result, The Times found, undercutting Chief Justice Roberts and Justice Breyer’s quest to find a middle ground.
In the Dobbs case, the court “barreled over each of its normal procedural guardrails,” wrote Richard M. Re, a University of Virginia law professor and former Kavanaugh clerk on a federal appellate court, adding that “the court compromised its own deliberative process.”
In his opinion, Justice Alito wrote that the court was stepping away from the abortion debate and intended to “return that authority to the people and their elected representatives.” Since the court’s ruling, access to abortion has dropped overall, with 21 states banning or restricting it and some others reinforcing abortion protections.
Now, the abortion debate is returning to the Supreme Court. The justices decided this week to hear a new case, on the availability of the pills that have become the most common method of terminating pregnancies. Once again, questions of choice and life will rest in their hands.
A Race to the Bench
In March 2018, when Mississippi legislators banned most abortions after 15 weeks of pregnancy, the law looked like little more than a doomed symbolic gesture.
The state’s one remaining abortion clinic, Jackson Women’s Health, had already outlasted protesters, a governor who had vowed to close it and so much opposition that its director had pursued her own law degree. For all those years, Roe had shielded the clinic. Now that protection kicked in again.
“The state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” wrote Judge Carlton W. Reeves of Federal District Court in Jackson as he struck down the law later that year.
He had been appointed by President Barack Obama; the U.S. Court of Appeals for the Fifth Circuit, a famously conservative institution based in New Orleans, affirmed the judge’s decision in 2019. “In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and reaffirmed) a woman’s right to choose an abortion before viability,” wrote Judge Patrick E. Higginbotham, nominated by President Ronald Reagan.
Mississippi’s last option was an appeal to the Supreme Court, which seemed unlikely to grant review. Mr. Trump had vowed to name justices who would “automatically” overrule Roe, and he had already installed two conservatives. But as long as Justice Ginsburg, the court’s foremost defender of abortion rights, was alive, the Mississippi officials would almost certainly not have the votes required to overrule Roe.
Just as Mississippi’s petition arrived at the court in June 2020, however, the justice’s health was worsening. She had remained on the bench despite multiple types of cancer, broken ribs from a fall and pleas that she step down earlier so Mr. Obama could appoint a like-minded successor. Now her pancreatic cancer had spread, and the pandemic escalated the threat to her health.
Her assistants devoted themselves to protecting the justice, transforming her home into a makeshift office, taking turns there and quarantining beforehand, according to several people at the court then.
Justice Ginsburg, 87, mustered the strength to perform a wedding on Aug. 30. Three days later, Mississippi’s appeal appeared on the agenda for the justices’ first conference of the term, in late September. With Election Day approaching, she was willing herself to survive as long as possible, according to people close to her.
She lasted until Sept. 18. The timing of her death highlighted a singular feature of the federal judicial system: The United States is the world’s only major constitutional democracy without term limits or a mandatory retirement age for its highest judges. The lifetime tenure granted to Supreme Court justices means that laws affecting hundreds of millions of people can hang on the happenstance of a single elderly citizen’s decline.
The arrival of a new justice can help refresh the law. But tying a dramatic legal shift to the death of one particular justice can also erode trust in the court.
“Whatever you think about how abortion rights should be resolved,” said David A. Strauss, a University of Chicago law professor, “to resolve it this way, with a deathbed watch on one old person, seems crazy.”
The previous death on the bench had produced unprecedented political maneuvering. Immediately after Justice Antonin Scalia passed away in 2016, the Senate majority leader, Mitch McConnell, refused to hold confirmation hearings for any successor chosen by Mr. Obama. Days later, Chief Justice Roberts wrote a previously undisclosed memo to his colleagues. His concern was how an evenly divided court could resolve cases given that the vacancy seemed a long way from being filled — “unfortunately,” he said.
“Depending on the outcome of the election of both the president and the Senate, it may be some time after Inauguration Day before we even have a nominee, let alone a new colleague,” he wrote. “I think it quite possible that we will be operating as an eight-member court for over a year. In addition, the court will unfortunately be the focus of heated partisan debate over the summer and into the fall, which would be exacerbated if specific 4-4 cases were set to be reargued when a new justice joins the court.”
Back then, Mr. McConnell had declared that the winner of the upcoming presidential election, roughly nine months away, should make the appointment. But in 2020, with another election less than seven weeks away, Mr. Trump and Mr. McConnell sprinted a new justice onto the court.
Days after Justice Ginsburg’s death, Mr. Trump nominated Justice Barrett, who had once signed a statement against “abortion on demand.” Shortly after the burial, grieving staff members were instructed to empty Justice Ginsburg’s chambers. Justice Barrett was confirmed on Oct. 26, when early voting was already underway in the election that would end Mr. Trump’s presidency.
Suddenly the Mississippi law had fresh prospects. But instead of discussing whether to take the case, the court rescheduled the matter again and again, for an unusual nine times, through the end of the year. For at least some of that period, Justice Alito was doing the rescheduling, according to two people who observed the process. To some at the court, he appeared to be waiting for his new colleague to get settled. Justice Alito did not respond to a request for an interview about his role in the case.
During confirmation hearings, she and every other justice had fielded ritual questions about Roe, giving cautious answers. Justice Kavanaugh, facing a narrow confirmation vote in 2018, had assured Democratic senators that he considered Roe to be “settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis,” or adhering to past decisions. Later, Senator Susan Collins, a Republican abortion rights supporter, said he had told her privately: “I am a don’t-rock-the-boat kind of judge. I believe in stability and in the Team of Nine.”
Justice Alito, for his part, had long been open about two things: He wanted to be on the Supreme Court — he joked about it in his Princeton yearbook — and he believed Roe was wrong. In 1985, as Reagan administration lawyer, he helped craft strategy to challenge state abortion laws. Later, he wrote that he had helped advance “legal positions in which I personally believe very strongly,” one of which was that “the Constitution does not protect a right to an abortion.”
After President George W. Bush nominated him to the court in 2005, his mother told reporters that he “still carries his Roman Catholic values” and “is against abortion.”
At his confirmation hearings, Justice Alito was questioned about his 1985 assertion that the Constitution did not protect abortion. He told senators that he would approach any questions about Roe no longer as a lawyer advocating an outcome but as an impartial judge.
A Bold Reversal
On Jan. 8, 2021, the justices began a discussion about whether to hear Dobbs that was marked by urgency and resistance — and led to an extraordinary waiting game.
The process of deciding whether to hear a case is opaque, unfolding within the “conference”— the term for the justices’ private meetings, as well as the whole group. That decision to grant review, or certiorari, requires at least four votes. Tallies are not public. Even some ground rules are secret, codified in a memo called “The Confidential Procedures of the Conference.”
That January day, the justices talked against a strange, scary backdrop: A coronavirus surge was everywhere, and two days before, the court building was emptied after a mob of Trump supporters overtook the Capitol, just across the street.
Two decades after the Roe decision, the court in Planned Parenthood v. Casey had given states some leeway to restrict abortion. But it reaffirmed what it called Roe’s core rule: States could not ban the procedure before the point of viability, or survival outside the uterus (currently about 23 weeks, near the end of the second trimester). Ever since, the court had refused to reconsider that line, making it “one of the most well-settled issues in the law,” as Mr. Re, the law professor, put it.
Now Mississippi had a bold ask: to let states enact abortion limits before the viability line — starting with its 15-week ban.
But it stopped short of requesting the court to invalidate Roe. “To be clear,” it said, “the questions presented in this petition do not require the court to overturn Roe or Casey.”
At the Jan. 8 conference, the three liberals — Justices Breyer, Elena Kagan and Sonia Sotomayor — and the chief justice opposed hearing the case. The five other conservatives voted in favor, according to a written tally and several people familiar with the discussions. They couldn’t avoid a case like this, Justice Kavanaugh told the group.
Dobbs had more than cleared the bar to proceed. But at a subsequent meeting, he made an unorthodox suggestion: The court could withhold the public announcement of its decision to take the case. The justices could re-list Dobbs again and again on the public docket, then announce the decision to move forward in the spring.
That would push it to the next term, avoiding a rushed briefing and argument schedule, and allow them to watch other abortion cases winding through lower courts, according to two people aware of the discussion. His plan would also suggest the court was still debating whether to go forward, even though a vote had been taken — and create the appearance of distance from Justice Ginsburg’s death.
Justices Alito, Gorsuch and Thomas disagreed, wanting to move sooner and hear the case that term. Some justices questioned whether Justice Kavanaugh’s proposal was appropriate: The case had been on the docket since September.
But Justice Barrett, the newest member of the court, made a strong stand. She was the lone woman in the conservative bloc, with seven children and personal views on abortion that were no secret. Of the nine people in black robes, she was the sole mother.
This was not the time, she told Justice Alito, according to two people aware of the comment. She had arrived not even three months before. If the others intended to hear the case that term, she said, she would change her vote to oppose taking it.
The chief also expressed concern, saying the court could look as if it had been waiting for a new justice to take on a challenge to Roe. Justice Alito, seemingly worried that a delay could affect the outcome, asked Justice Kavanaugh if his vote was solid, to which the younger man said yes.
The Kavanaugh plan prevailed, and as the winter of 2021 turned to spring, the docket showed the case being re-listed week after week. Anxiety mounted among conservatives outside the court. Seizing the moment was vital, they were saying. Justices Alito and Thomas were in their 70s, and the new conservative supermajority would not last forever.
“If the court somehow ends up failing to grant certiorari in Dobbs, there will justifiably be staggering disappointment with any conservative justices who failed to provide the needed votes,” Ed Whelan, a legal commentator and former Scalia clerk, wrote in April of 2021, ten months after the petition was filed.
In the conservative legal movement, which felt burned by defections by Republican appointees, Justice Kavanaugh was seen as a flight risk. His jurisprudence on abortion law was marked by attempts to patch together compromises and push off difficult decisions. As his name had surfaced on a shortlist for the court, supporters of potential rivals attacked him in an anonymous memo claiming he showed a pattern of “abandoning conservative principles.”
Still, the right closed ranks around him after his nomination, especially after he was accused of long-ago sexual misconduct, which he vehemently denied.
The court’s delay tactic on Dobbs opened a door for possible persuasion. Chief Justice Roberts and Justice Breyer, who were both drawn to consensus, were hoping to persuade their two newest colleagues to reconsider their support for hearing the case.
Justice Breyer was sometimes dismissed by other liberals as an overly optimistic institutionalist who underestimated the ambitions of the conservative majority. But inside the building, he had formed strong ties with the justices on the right. (When Justice Alito arrived, Justice Breyer charmed him with a surprise visit from the Phillie Phanatic, mascot of his favorite baseball team.) “They like him,” said one conservative who worked at the court then. “He’s like your favorite law professor.”
Arguments for abortion rights that were rooted in women’s equality and autonomy appeared unlikely to win over the conservatives. But his argument about Dobbs and abortion had become broader, stressing a need to respect precedent and guard the court’s legitimacy.
In a speech at Harvard Law School and in private entreaties, Justice Breyer, then 82, played to the generational split among his conservative colleagues. Justice Kavanaugh was in his mid-50s, with decades on the bench before him. Justice Barrett was just 48. To maintain Americans’ trust in the court, he urged, the newcomers should take the long view.
“What’s the rush?” he would ask, according to several people at the court then. “Why would you do it first thing after you get on the court?”
His entreaties failed. On May 17, 2021, the court publicly said yes to hearing Mississippi’s petition. With their waiting game, the justices had nearly broken a record: Dobbs was the second most re-listed case ever granted review.
But sometime before the announcement, Justice Barrett had switched her vote. Just four members of the court, the bare minimum, chose to grant, with Justice Kavanaugh taking the side of Justices Alito, Gorsuch and Thomas. They overrode five colleagues — including all the female justices — who had an array of concerns. The men appeared to be betting that Justice Barrett would ultimately side with them, pushing her into a case she had not wanted to take.
Her reasons for the reversal are unclear. But as a professor in 2013, she had written a law review article laying out the kind of dilemma she faced in spring 2021. “If the court’s opinions change with its membership, public confidence in the court as an institution might decline,” she noted. “Its members might be seen as partisan rather than impartial and case law as fueled by power rather than reason.”
That July, with its audience before the court secure, Mississippi made the case more monumental, abruptly changing its strategy. “Roe and Casey are egregiously wrong,” the state’s main brief declared on its first page. It urged the justices to be bold. “The question becomes whether this court should overrule those decisions. It should.”
At times the court has considered such shifts problematic — even dismissing the central question in a case, as it did in 2015, and the entire dispute, as it did in 2016. Later, in his opinion, the chief justice criticized Mississippi’s switch. But even if he or others moved to reject the case, the votes did not appear to be available.
The author of the brief that transformed Dobbs into a full assault on Roe, Scott Stewart, the newly appointed solicitor general of Mississippi, was a former law clerk who, like many others, maintained close ties to the court.
The month it was filed, Justice Thomas and his wife, Virginia, held a gathering for his former clerks and their families at a West Virginia resort. Mr. Stewart, who had worked for the justice from 2015 to 2016, was among them. He had attended reunions in previous years, and now he was about to argue his first case — one of surpassing importance — before his former boss and the other justices.
Jeffrey L. Fisher, a Stanford law professor who helped represent the abortion clinic in the case, was struck when he read Mississippi’s brief. “The state’s going for the jugular,” he remembers thinking. “This is it.”
Countdown to Midnight
But the fall of Roe began even sooner. In late summer 2021, with both sides in Dobbs preparing their arguments, a case from Texas raced ahead, causing a last-minute scramble inside the court.
Chief Justice Roberts and Justice Alito had arrived at the court just months apart, appointed by the same Republican president, and in their early years often voted together. But the chief was dominant — as the court’s leader, head of the federal judiciary and custodian of his institution’s authority and reliability, roles that tempered his fundamentally conservative instincts at times.
“It is a jolt to the legal system when you overrule a precedent,” he had said at his confirmation hearings. “Precedent plays an important role in promoting stability and evenhandedness.”
He objected to claims that judges were partisans, and advocated steadiness. In 2012, he cast a vote to save Mr. Obama’s Affordable Care Act, infuriating many conservatives.
Now, nearly a decade later, the Trump nominees had arrived, and Justices Alito and Thomas were gaining the upper hand. The chief, who has limited authority over his fellow justices, was losing his ability to cultivate restraint and found himself in a lonely position: as a conservative ally to his three liberal colleagues in preserving at least some abortion rights. In the final days of August 2021, the justices considered a law designed to shatter those protections.
Abortion providers were asking the court to block a new Texas law that was intended to all but abolish the procedure in the state, banning it beyond about six weeks of pregnancy. The law had been contrived to evade federal review, including from the Supreme Court. In an end run, its authors assigned enforcement not to state officials but to private individuals, who could sue anyone who performed or helped with abortions, from doctors to Uber drivers.
To make matters more fraught, the challenge to the Texas law arrived in an emergency application, part of the “shadow docket” through which the justices made rapid calls with little public explanation. The new law was set to go into effect in less than two days, the moment the calendar turned to Sept. 1. Unless the justices acted, Roe would effectively be overturned in the second-largest state in the country.
On the afternoon of Aug. 31, during the court’s summerlong break, Justice Alito emailed his colleagues a memo arguing against intervening, according to notes on the discussion. The justices’ hands were tied, the lawsuit was flawed and their decision was not a judgment on the constitutionality of the law, he wrote. Justices Thomas, Kavanaugh and Barrett agreed, with the new justice honing the language of what the court’s response might say.
But the chief put up a fight. “It is certainly arguable (and argued here) that the existence of the law itself operates to chill the exercise of a recognized constitutional right,” he wrote, according to the notes, and it could have far-reaching implications. He wanted to pause the ban and figure out how to proceed. Justices Breyer, Kagan and Sotomayor took his side, resulting in four votes to intervene.
With just a few hours until midnight, the court was split 4-4. One justice had not voted: Neil Gorsuch.
There would be no word from him that evening, Justice Alito reported to his colleagues. Later, Justice Gorsuch declined to comment to The Times.
Nothing that happened afterward affected the outcome. The next afternoon, Justice Gorsuch voted against intervening. The chief justice made one last argument to block the law but failed, according to the notes. The court announced its decision; the litigation continued to play out for months, reaching the justices again for a fuller hearing, but the statute stayed intact.
That summer night in 2021, Roe was partially undone.
Minutes before the deadline, Justice Sotomayor had protested that the court was not weighing in publicly before the law went into effect. She sent a plaintive, one-line memo to the conference, addressed to Justice Alito.
“What a pity that we cannot do the right thing,” she wrote.
15 Weeks
That fall, the lawyers in the Dobbs case were rehearsing for their appearance before the justices, each side doing an extraordinary eight rounds of moot court exercises. As Mr. Stewart, the Mississippi solicitor general, prepared for his turn at the lectern during oral arguments, he was urged by conservatives among the elite Supreme Court bar to mention a middle ground that might appeal to the chief justice and help ensure at least a partial victory.
The logic went like this: The state’s 15-week limit on abortions could be upheld without overturning Roe. That cutoff, broadly consistent with U.S. public opinion and practices in many other democracies, would still allow the majority of abortions. The state’s brief did devote a few pages to the possibility.
That December, in a sparsely filled courtroom under Covid-19 restrictions, Mr. Stewart brushed off the advice he had gotten and went big. The justices should “go all the way and overrule Roe and Casey,” he said.
Soon after, still probing for a narrower result, the chief justice asked the clinic’s counsel, “If it really is an issue about choice, why is 15 weeks not enough time?”
The clinic also took an all-or-nothing position. “States will rush to ban abortion at virtually any point in pregnancy,” responded Julie Rikelman, a lawyer for the clinic.
The strategy was “to really put pressure on what this was going to mean, for the integrity of the court, to reverse such a longstanding, individual, personal liberty, and the chaos that it was going to create,” said Nancy Northup, president of the Center for Reproductive Rights, which represented the clinic, in an interview. Any erosion of the viability line, the clinic’s lawyers felt, would only lead to the eventual undoing of Roe.
But defending Roe had particular challenges. Its reasoning, based on a right to privacy said to be implicit in the Constitution, had been widely criticized over the years, including by liberal scholars who supported abortion rights as a matter of policy.
“It is not constitutional law,” wrote John Hart Ely, in The Yale Law Journal in 1973, “and gives almost no sense of an obligation to try to be.”
Justice Ginsburg, too, had qualms about the decision. In public appearances, she said that the Supreme Court had “moved too far, too fast,” in the ruling, and that she wished it had been based on a gender-equality rationale.
During oral arguments, some of the conservative justices showed little interest in the chief’s course. Justice Barrett, who has two children from Haiti, asked about adoption as an alternative to abortion. Justice Alito pressed Ms. Rikelman with skeptical queries about the viability standard and the history of abortion rights.
When she said a 15-week limit would not give women enough time to decide the fate of their pregnancies, Justice Alito cited a passage in her brief. “You say that ‘there are no half-measures here,’” he said. “Is that a correct understanding of your brief?”
It was, Ms. Rikelman said.
Days later, the justices reassembled to take a preliminary vote. Five favored overturning Roe, meaning they seemed set to prevail. The chief would have allowed Mississippi’s 15-week ban — technically putting him in the majority — but would go no further. The three liberals would have upheld the lower courts’ invalidation of the law.
When the chief is on the prevailing side, he typically assigns opinions. But in this case, several people from the court said, the senior member of the majority — Justice Thomas — assigned the opinion to Justice Alito.
In his draft, Justice Alito wrote that Roe and Casey were legally unsound, that abortion rights had only a limited history in the United States and that abortion destroyed what the Mississippi law called the life of an “unborn human being.”
Now his mission was to keep his five votes together. Members of the court sometimes change their votes, which are not final until a decision is announced. When the speedy replies arrived in February, others at the court concluded that he had precirculated the draft opinion among his four allies, getting buy-in before sharing it with the full group of justices.
Justice Alito had a special reason to fear defection. In 1992’s Casey decision, many observers thought the court — with eight justices, including Justice Thomas, appointed by Republican presidents — would overturn Roe. Five initially favored doing so, according to legal historians.
But Justices Sandra Day O’Connor and David H. Souter secretly persuaded Justice Anthony M. Kennedy to join a middle-of-the-road opinion. Those justices permitted more restrictions on abortion but saved the overall right, shifting it from its controversial privacy rationale to one focused on liberty.
Justice Alito knew the story well, because he had heard Casey as an appeals court judge. Now, the loss of even one member of the Dobbs majority would mean defeat, for the case and the conservative legal movement.
“If the court fails to overrule Roe, the ruling will likely shatter the movement,” J. Joel Alicea, a Catholic University law professor and former Alito clerk, wrote in an essay at the time.
In mid-March, the conservative majority learned something worrisome: Justice Thomas was hospitalized for an unspecified infection that was not Covid. He would be released in a day or two, a court statement said. Instead he spent a week in the hospital. He recovered, but it was a reminder that no one knew how long the conservative supremacy might last.
Around the same time, another risk emerged: The chief and Justice Breyer continued trying to crack the coalition, making a last-ditch effort to save Roe. For years, Justice Kavanaugh’s career had trailed the chief’s, the two becoming allies and friends, often voting together and even playing in the same poker game. Though some conservative critics cast the chief as a turncoat when he sided with liberals, Justice Kavanaugh publicly praised him as a role model.
The chief’s middle position had potential power. Because the six-vote majority was splintered — he was willing to join the others in upholding the 15-week law but not in overturning Roe outright — the court’s rules required that at least five justices had to agree on the position for it to hold. Otherwise, the rationale resting on the narrowest grounds would prevail. That meant the chief needed to peel only one vote away from the conservative side to transform his losing compromise into the winning opinion — and save the constitutional right to abortion. (The chief’s efforts were reported earlier by CNN.)
Justice Breyer sought out Justice Kavanaugh, growing passionate in his arguments. If they could win him over, Justice Breyer even contemplated joining him and the chief in a 15-week position, according to people familiar with his thinking. The move — restricting the right to abortion to help save it — might have outraged liberals. But for Justice Breyer, who had just announced his retirement, it would have been a parting statement about how the justices can address contentious questions.
Meanwhile, even as the conservatives were seeking the chief’s vote, he was laboring over a concurring opinion he hoped would be persuasive. It was difficult to tell how open Justice Kavanaugh was to changing his position, according to several people aware of the discussions. But he was listening to his colleagues.
On April 27, after hearing the last argument of the term, Chief Justice Roberts paused for a moment of recognition. This would be Justice Breyer’s final appearance after 28 years on the court. As the chief saluted “the privilege of sharing this bench” with his friend, he choked up with emotion.
(Caption: The final opinion in Dobbs vs. Jackson Women’s Health Organization, left, and the draft that was leaked to the news organization Politico.)
An End to Compromise
That week, the first public hints about the chief’s efforts emerged, with the Wall Street Journal editorial board writing that he “may be trying to turn another justice now.” The targets were Justices Barrett and Kavanaugh, the article said.
In other relatively recent cases — the 2012 Obamacare case and a 2020 case about gay and transgender rights — similar warnings had appeared in conservative media outlets, apparently to try to prevent justices on the right from splitting off to join liberals. In the health care matter, some information appeared to have dribbled out of the court.
But the leak of the Alito draft turned into a violation of a different order. On April 29, the justices gathered for their Friday conference meeting. Traditionally, they ate lunch together afterward in their dining room, and this time they had planned a birthday toast for Justice Kagan, who had turned 62 the day before.
Sometime during those hours, the chief justice informed his colleagues that the full draft had been shared with Politico, according to people at the court then. On the following Monday evening, May 2, the news site published its story.
Mr. Stewart, the Mississippi solicitor general, was walking his dog in Jackson when he found out his side seemed set to win the historic case. One of the lawyers for the clinic was parking her car in Brooklyn when she heard the news. The clinic’s owner and director were changing planes in Atlanta when word flashed on television screens. Millions of other Americans were commuting home or eating dinner when they learned the Supreme Court appeared ready to rule against the constitutional right to abortion.
Along with jubilation from abortion opponents, and anguish from supporters, came a shared question: Would this be the final decision? In a grim statement acknowledging the leak and announcing an investigation, the court said the draft “does not represent a decision by the court or the final position of any member on the issues in the case.”
“The work of the court will not be affected in any way,” the chief justice added.
Behind the scenes, that did not turn out to be true. Whatever the intent, the breach became a strike on the chief, Justice Breyer and their quest for compromise, said several people from the court. The chief worried whether he could even share his concurring opinion on an email list that had become a roster of suspects, waiting until new, paper-only protocols were in place.
The fact that the entire draft had been leaked, not just the outcome, raised the possibility that someone had tried to either expose the language or seal it. Pending votes were secret in part to allow justices to change their minds, and making the draft public had effectively cemented the votes.
The leak investigation that followed was inconclusive and drew complaints that it was unfair. The justices talked to the court’s marshal but were not subjected to scrutiny as clerks and other employees were, the marshal later acknowledged.
Some conservative commentators theorized that a liberal had shared the draft to raise alarms. On the internet, accusers on the right attacked some of the clerks for liberal justices, posting speculative theories along with their names and photographs. (Later, investigators found “nothing to substantiate” the accusations.)
The marshal’s office presented a form to the clerks, later obtained by The Times, that spurred panic. The young lawyers, dependent on court relationships for future jobs, were asked for access to their personal phones; location data going back nearly a year; and emails, texts, voice messages and photos.
Investigators could search for any references to abortion, criticism of the Supreme Court, mentions of court procedures and “any contact of any kind with or concerning reporters or media organizations.” It is not clear whether clerks signed the form: At least some sought legal advice and negotiated limits.
Amid all the procedural questions surrounding Dobbs, “the leak is the biggest potential stain on the case, especially if it was intended to influence deliberations,” said William Baude, a University of Chicago law professor and former clerk to Chief Justice Roberts. “But because the motive and culprit are unknown, it’s been hard to evaluate.”
Registering Dissent
At 10:10 a.m. on June 24, 2022, near the end of the term, the court released its decision. Justice Alito’s leaked draft, with some slight changes, had become the final word.
“Roe was egregiously wrong from the start,” he wrote, adding, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” The nation erupted in protest and celebration.
The dissent was unusual, written by the three liberal justices in unison. Overturning Roe and Casey “undermines the court’s legitimacy,” they wrote, a grave statement from Justice Breyer, who had spent years defending the institution to critics.
He had asked the chief if a summary of the three justices’ dissent could be read aloud, a practice reserved for when those in the minority felt most strongly. The request evoked the memory of Justice Ginsburg, who had deployed oral dissents as a form of protest, even wearing a special collar over her robe.
Months later, reading dissents aloud would be challenged, according to a record of the discussion. As the pandemic abated and Justice Ketanji Brown Jackson settled into the court, Justice Gorsuch pushed to maintain the Covid-era practice of dispensing only written decisions. He wanted to skip in-person decision announcements altogether, including oral dissents, which he argued were often misleading. The public would gain respect for the court by focusing on written opinions, he said. Justices Alito, Barrett and Thomas responded that they agreed.
The outnumbered liberals, now all female, stood to lose the most. “I think this would be a particularly unfortunate time to eliminate the practice of reading dissents,” Justice Kagan wrote to her colleagues. Justice Kavanaugh agreed with them, and after further discussion, the group decided that the tradition would survive.
But it did not apply to Dobbs. The chief had turned Justice Breyer down. Decisions at that time were still being released online, not in person.
Within hours of the announcement, abortion clinics in some states had to close. But Mississippi had a 10-day interim period. As the clock counted down, a single doctor at the Jackson clinic tried to serve everyone. The medical team there had been unusually busy ever since abortion had been all but banned in Texas. Now, patients came from Alabama, too.
On July 6, the clinic performed its final abortion. The pink building was painted white and turned into a home décor store. But the phone lines stayed open. For months afterward, women who had not gotten the news about the justices’ decision in Washington were still calling
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Supreme Illegitimacy | The Regulatory Review
A terrible trio of Supreme Court cases from last term illustrates the need for judicial reform, which can occur through several options.
In a single week in June 2022, at the close of its last term, the U.S. Supreme Court undermined its own political legitimacy through three decisions: New York State Rifle & Pistol Association v. Bruen, Dobbs v. Jackson Women’s Health Organization, and West Virginia v. Environmental Protection Agency. Each of these decisions strikes at a core justification for any government: the need to protect the lives of its people.
Conservative and liberal political theories of different stripes agree that a foundational purpose of government is to preserve the lives and assure the safety of its citizens. They agree that government is justified by the need to preserve civil order through law, ideally through democratic processes, to protect the unalienable right to life.
Protecting the right to life is a primary justification for the consent of citizens to the authority of government in the social contract tradition of Hobbes, Locke, and Rousseau, which informed revolutions establishing democratic republics in the United States and Europe. Since then, long-standing questions have persisted about whose lives matter and who counts as citizens. A foundational principle, however, remains that government must protect the right to life of its citizens to remain politically legitimate.
For this reason, it is shocking to see the Supreme Court acting contrary to the right to life of millions of Americans with respect to gun safety, reproductive health, and climate damage. The Court’s self-inflicted political illegitimacy demands immediate reform.
To begin with some conceptual background, legitimacy is an essentially contested concept in social theory. For purposes here, one can distinguish the following kinds of legitimacy: legal legitimacy, empirical political legitimacy, and substantive political legitimacy.
Legal legitimacy refers to whether the enactment of laws and their application follow agreed standards of rationality and interpretation. The frequent and arbitrary interference of an authoritarian leader in particular cases, for example, would void legal legitimacy.
Empirical political legitimacy refers to whether citizens in a specific government believe law-making and law-applying processes accord with their fundamental values, including, for example, following democratic procedures and trusting judges to act fairly.
Substantive political legitimacy refers to whether a legal and political system adheres to a minimum standard of moral coherence and normative justification of political authority. A regime that deprives a large mass of its citizens of vital rights loses this kind of legitimacy.
Owing to its decisions at the end of its last term, the Supreme Court has lost legitimacy along all three dimensions. Most decisively, the Court has lost its substantive political legitimacy by preventing the government from protecting the right to life of millions of Americans against gun violence, reproductive health risks, and degenerative climate consequences.
My argument that the Court has wrongly decided these cases is not simply a legal or constitutional one. It is an argument based in political and democratic theory that the current Court has lost its substantive political legitimacy, thus mandating its structural reform.
The first instance of the Court’s misfiring came in New York State Rifle & Pistol Association v. Bruen. The Court in this case overturned a century-old New York state gun licensing statute through an expansive interpretation of the Second Amendment. In an earlier decision, District of Columbia v. Heller, the Court had previously struck down a law that prohibited the possession of handguns in the home as a violation of the Second Amendment. But in Bruen, the Court went further to require any gun licensing regime to give citizens a right to meet objective criteria to carry a gun in public.
Purportedly grounded in history, Justice Clarence Thomas’s majority opinion in fact flies in the face of hundreds of years of the government regulating dangerous weapons to keep people safe in their homes, on the streets, in their schools, and in their workplaces. Thomas argues that the Second Amendment enshrines an individual right to carry arms following a tradition going back to the first kings of England. The true history shows a gradual empowering of the state to restrict the public carry of weapons. As one historian explains, Thomas’s opinion is “rambling” and adopts “an almost childlike caricature” of historical method.
More than the bad history and bad law, Bruen is politically illegitimate because of its predictable consequences. It will exacerbate gun violence by impeding federal, state, and local governments from enacting common-sense gun safety regulations to preserve many human lives. Striking down the licensing statute in New York also overturned similar laws in six other states and the District of Columbia, and has thrown into doubt other important gun safety regulations.
The Court has done so at a time when doctors describe gun violence as an epidemic. Justice Stephen Breyer’s dissent provides the grisly details. Simply reciting the names of places of recent gun massacres—Philadelphia, Uvalde, Buffalo, Atlanta, Dayton, Orlando, Charleston, Aurora, Newtown, and more—recalls a toll of many innocent lives lost, including many children. Since 2010, gun-related deaths have increased more than 44 percent. Gun-related deaths now exceed 45,000 annually, surpassing car accidents as a cause of death. The Centers for Disease Control and Prevention reports that 48,832 gun deaths in 2021 is the highest number of gun deaths in 30 years.
The Court’s majority in Bruen is oblivious to the carnage. Justice Samuel Alito, in a concurring opinion, repeats a gun lobby trope about anecdotal cases of “good guys with guns” who foil public assaults. But he fails to grapple with the grim nationwide statistics. Studies show that the “good guy with a gun” is a “statistical unicorn.”
Bruen compounds the Court’s misinterpretation of the Second Amendment in Heller by announcing what is essentially a new constitutional right of vigilantism. The Court refuses to give credence to the post-Heller test developed by eleven Courts of Appeals that balanced the government’s interest in preventing gun violence against Second Amendment rights. Last week, a federal judge illustrated the destructive scope of Bruen by striking down provisions of New York’s post-Bruen gun safety legislation, including the prohibition of guns in “sensitive” areas such as museums, theaters, stadiums, libraries, bars, and even child care facilities.
No modern government can maintain its political legitimacy without keeping its citizens safe from an epidemic of gun violence. As the philosopher Amanda Greene reasons, “legitimacy is not possible while there is open conflict and threat of violence.”
If Bruen threatens the safety of all Americans wherever they may go in public, a second legitimacy-shattering decision endangers the lives of many women.
In Dobbs v. Jackson Women’s Health Organization, the Court struck down the 50-year old precedent of Roe v. Wade. Whatever one may think of the morality of abortion, the problem for the Court’s political legitimacy is that its radical decision will inevitably cause the deaths of many pregnant persons. This choice is ironic, given the Court’s intention to protect “prenatal life.”
The Court heard evidence that reversing Roe and its precedents would cause many deaths from lack of professional medical attention, a return to unclean or improvised abortions, and forcing mothers with serious health risks to give birth. The Court’s majority did not care. Justice Alito, writing for the majority, noted “impassioned and conflicting arguments about the effects of the abortion right on the lives of women,” but then ignored the evidence.
In dissent, Justices Breyer, Sonia Sotomayor, and Elena Kagan observed that Roe and its precedents allowed states to “prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health.” Dobbs now frees the states to adopt any legal restriction beginning at conception, including criminal penalties against mothers and doctors. It recognizes no exceptions for pregnancies resulting from rape or incest, nor for fatal birth defects or complications that risk a mother’s life.
Speaking plainly, the Court has condemned many women to death. Women who carry a pregnancy to term are 14 times more likely to die than when abortion terminates a pregnancy. They are 75 times more likely to die in Mississippi, the state where Dobbs arose. Moreover, researchers have estimated that “a ban on abortions increases maternal mortality by 21 percent, with white women facing a 13 percent increase in maternal mortality while black women face a 33 percent increase.” The Court’s majority has the blood of these women on its hands.
It is one thing to bestow a new constitutional right. It is quite another to withdraw a preexisting, settled right knowing that the decision will kill many people who have relied on it.
At oral argument, Justice Sotomayor asked: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I do not see how it is possible.” She is right.
Last but not least, the Court’s decision in West Virginia v. EPA impedes governmental power to address the most difficult and threatening problem that humanity has ever faced: global climate disruption. Once again, the Court undercuts the ability of government to preserve the right to life of present and, in this case, future generations.
The climate emergency is here. As Justice Kagan observes in her dissenting opinion, many deaths are already occurring from an increasing severity of heatwaves, droughts, wildfires, storms, and floods. By the end of the century, human-caused climate disruption may account for as many as “4.6 million excess yearly deaths.” The Court’s majority simply shrugs off the scientific facts of these dangers.
The majority’s arrogance in West Virginia is astonishing. It reaches out to review a moot Obama-era Clean Power Plan, and then creates an entirely new “major questions doctrine” to restrict governmental authority. As Justice Kagan writes, this doctrine appears “magically” as a “get-out-of-text-free card” to “prevent agencies from doing important work, even though that is what the U.S. Congress directed.”
Professor Richard Revesz confirms that the new major questions doctrine announced in West Virginia, and effectively applied in an earlier case National Federation of Independent Business v. Department of Labor, “casts an ominous pall over the nation’s regulatory future.” Even though Congress acted in August to re-empower the EPA by adopting a statute overturning the effect of West Virginia with respect to the agency’s authority to regulate greenhouse gases, the new major questions doctrine will continue to impede effective climate and other health-related policies.
As in Bruen and Dobbs, the Court’s new doctrine announced in West Virginia will kill people. Taken together, the cases count three strikes against the Court’s political legitimacy by preventing the political branches from acting to protect the basic right to life of its citizens.
One may also assess the legal legitimacy of these decisions as “egregiously wrong.” Bruen extends a wrong-headed originalist interpretation of the Second Amendment and adds historical errors. Dobbs lacks “any coherent legal analysis” on the merits and violates the principle of stare decisis, overturning the 50-year old precedent of Roe as well as the 30-year-old “precedent on precedent” of Planned Parenthood of Southeastern Pennsylvania v. Casey. And West Virginia conjures a brand new “major questions doctrine” to prune the authority of the administrative state.
My argument here, however, does not focus on the weaknesses in the Court’s constitutional interpretation or legal methodology. A deeper, unifying feature of these cases is that they are politically illegitimate because they subvert the government’s authority to protect citizens’ lives with respect to gun violence, reproductive health, and climate damage.
Not surprisingly, these decisions are unpopular with the public, eroding the Court’s political empirical legitimacy as well. Public opinion polls show the Court at its lowest approval ratings on record. In the latest Gallup survey, a record low of only 47 percent of Americans say they trust “the judicial branch headed by the U.S. Supreme Court.” Only 40 percent approve of how the Court is doing its job.
The Court’s loss of both substantive and empirical political legitimacy means that the “quality assent” of citizens needed to justify it has vanished. A major political structural adjustment is therefore required. A Supreme Court that has lost its political legitimacy must be reformed. Otherwise, our government as a whole could lose legitimacy, tilting the political world toward chaos.
Although it is rare, this is not the first time in history that the Court has launched itself into political illegitimacy. And the political branches, Congress and the President, have corrected the Court’s course before.
There are two important historical precedents. The first followed the Court’s worst decision ever, Dred Scott v. Sandford, which held that no enslaved or free black person had federal constitutional rights. Dred Scott sparked the Civil War, and its breach of legitimacy was repaired only by the recognition of rights in the Thirteenth, Fourteenth, and Fifteenth Amendments, along with the federal civil rights statutes adopted in the 1960s.
Another low moment for the Court occurred when it repeatedly struck down many statutes passed in the early days of President Franklin D. Roosevelt’s New Deal.
In these previous moments of lost judicial legitimacy, the political branches responded. During the Civil War, Congress increased the number of Supreme Court justices to ten, giving President Abraham Lincoln another appointment, and Congress then reduced the number to seven to prevent President Andrew Johnson from appointing justices to undo Reconstruction—which, unfortunately, later occurred anyway.
Responding to the Court’s evisceration of the New Deal, President Roosevelt threatened to appoint as many as six additional justices, depending on how many sitting justices reached the age of 70. This threat encouraged “the switch in time that saved nine” when a few justices changed their tune and upheld New Deal legislation.
The United States faces another constitutional legitimation crisis today. Fortunately, there is a menu of choices available to address it. The Presidential Commission on the Supreme Court of the United States issued a report in December 2021 examining options for reform.
In reviewing the options, any reform should meet two conditions. First, statutory interventions rather than constitutional amendments are needed because there is no time for a constitutional amendment. Second, any reform when adopted must dislodge the current majority that is acting illegitimately.
Here are three specific options that could be adopted singly or in combination.
1. Expand the Court to 13 justices. The power of Congress to alter the number of justices on the Court is long established as constitutional. The number of justices has fluctuated historically between a minimum of five and a maximum of ten, and the Commission determined that “there is widespread agreement among legal scholars that Congress has the constitutional authority to expand the Court’s size.” Law professors and former judges—including Michael Klarman, Mark Tushnet, Nancy Gertner, and Laurence Tribe—support expanding the membership of the Court.
Expanding the Court to 13 justices would counter the Machiavellian machinations of Senator Mitch McConnell. As Majority Leader, McConnell refused even to hold hearings on President Barack H. Obama’s appointment of Merrick Garland. McConnell later rushed through a confirmation of President Donald J. Trump’s appointment of Amy Coney Barrett, thus arguably stealing two appointments for Republicans. Giving President Joseph R. Biden the power to appoint four justices would rebalance the Court to a seven-six Democratic-to-Republican ratio.
Other justifications to expand the Court include increasing the number of justices to handle an increasing workload, returning to a tradition of one justice for each court of appeals, and conforming to the numbers of judges on the highest courts of other democratic governments in the world, which range from seven to 18.
2. Establish 18-year term limits for justices. Federal judges have a constitutional right to lifetime appointment, but this does not mean that Congress cannot set term limits specifically for the Supreme Court. As the Commission on the Supreme Court recognizes, rotation systems are possible. Retroactively imposing an 18-year term limit would require Justice Thomas to retire immediately, Chief Justice John Roberts in 2023, and Justice Alito in 2024.
Two thirds of Americans favor terms limits for the Court’s justices, according to a recent poll.
3. Set a mandatory retirement age of 75. Following the same logic that lifetime judicial appointments do not necessarily entail lifetime appointments to the Supreme Court, Congress could set a retirement age of, say, 75. Retired justices could remain active as senior judges by special designation to lower courts or as special masters. Setting a retirement age of 75 would require Justice Thomas to retire next year, Justice Alito in three years, Justice Sotomayor in seven years, and Chief Justice Roberts in eight years.
The Commission’s report reviews other alternatives as well, including jurisdiction stripping, a supermajority requirement for constitutional review of statutes, legislative overrides, a mandatory code of judicial ethics, and recusal rules for conflicts of interest. Other creative options include a “Supreme Court lottery” that entails randomly drawing Supreme Court panels for each case from a pool of all appellate judges, and a “balanced bench” comprising five justices appointed by Democrats, five by Republicans, and five by the ten politically appointed justices.
One might argue that rejiggering the structure of the Court may also have detrimental consequences for its legitimacy, causing it to become even more political or politicized. The United States, however, stands very far away today from dreams of “neutral principles.” The Court’s illegitimacy has become not just legal or even political; it is now existential.
At a conference last month, Chief Justice Roberts said, “I don’t understand the connection between opinions that people disagree with and the legitimacy of the Court.” He confuses legal legitimacy and political legitimacy. The problem is not just that the Court is getting the law wrong. Worse even than acting as “politicians in robes,” the Court’s current majority is taking an axe to a foundational root of the political legitimacy of government: the power to protect the right to life of its people.
Because the Court has become the “most dangerous” branch, “arrogantly heedless of the human and environmental consequences of the jurisprudence it so ruthlessly imposes,” it must be stopped. Congress and the President must determine the exact mode of reform, but some effective change of the Court’s structure is essential to restore its political legitimacy.
Eric W. Orts is the Guardsmark Professor at the Wharton School of the University of Pennsylvania.
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How The Supreme Court Is Destroying Its Own Legitimacy — AFJ
Justices of the Supreme Court have repeatedly claimed that the decisions about what cases to decide and how to decide them are not affected by politics. Justice John Roberts said in his confirmation hearing that he is like an umpire, not a batter. Justice Neil Gorsuch said that justices are not like “politicians with robes.” Shortly after her confirmation, Justice Amy Coney Barrett told an audience that her goal was “to convince you that this Court is not comprised of a bunch of partisan hacks.”
The justices are not convincing the American people. Favorable ratings of the Court have declined dramatically, according to numerous polls. This fall, a Gallup poll found that 58% of Americans “disapprove” of the job the Court is doing, which aligns with the 60% who disapproved of overruling Roe. A substantial majority have lost faith in the Court’s vaunted impartiality and believe it is too affected by “politics.” A Quinnipiac poll conducted after the Dobbs leak in May of last year found that 63% of Americans believe the Supreme Court is mainly motivated by politics. A Yahoo poll around the same time found that 74% believe the Court is “too politicized.”
The Court’s wounds are entirely self-inflicted. It has a far-right agenda and the scholarship informing its decisions is often questionable. Worse, new details have come to light of relationships some justices have had with wealthy ideological soulmates, including those with interest in cases before the Court. The Court’s credibility and the public’s acceptance of its decisions depends upon trust that it is not subject to outside influence. While lobbying may be common and acceptable in the legislative and executive branches, it is not — nor ought not to be — conceivable in our courts.
Unethical Lobbying
In November of last year, the New York Times reported that a former antiabortion activist, Rev. Rob Schenck, learned of the Court’s 2014 decision in Burwell v Hobby Lobby and its author (Justice Samuel Alito) days before it was publicly announced. Rev. Schenck more recently repeated his account of the leak before the House Judiciary Committee and added some details. At the time of the Hobby Lobby decision, he was the leader of a Christian ministry called Faith and Action. He recruited wealthy Christian couples as “stealth missionaries” to befriend Supreme Court justices and lobby them on issues like gun rights and abortion — an effort he called “Operation Higher Court.”
Schenck says that one of those couples, Gayle and Don Wright (now deceased) had a dinner with Justice Alito while Hobby Lobby was pending, after which Gayle relayed back that Justice Alito was writing the opinion and that Schenck would be happy with it. Justice Alito and Ms. Wright have both denied the leak, but no one has denied the efforts by Schenck and his nonprofit to directly lobby certain justices on contraception and abortion issues. Indeed, the Wrights socialized with Justices Alito, Scalia, and Thomas and happily occupied guest seats for arguments provided to them by “Nino and Sam” (Scalia and Alito). Gayle Wright sent Schenck a message after the decision saying, “I sent your email about [the] [H]obby lobby case to Sam [Alito]… He sent me an email back saying he appreciated your comments very much. How about that?”
“How about that,” indeed. Supreme Court justices have maintained and even encouraged relationships with persons deeply interested in their decisions and who share their political views. The relationships become so familiar that they refer to the justices by their first names, “Nino” and “Sam.”
Schenck’s level of access was undeniable. He arranged for the president of Hobby Lobby to attend a Court Christmas party in hopes of discussing his views with the justices in attendance. Schenck was also invited by Justice Thomas into his chambers to see a plaque of the Ten Commandments given to Thomas by Gayle and Don Wright.
One of the primary ways Schenk and others obtained the access necessary to build these relationships was through the Supreme Court Historical Society, a nonprofit ostensibly engaged in educating the public on the Court’s history. The New York Times reported that in the previous ten years, the society has raised more than $23 million dollars from donors, a substantial but unknowable chunk of which came from corporations, interest groups, and lawyers who have an interest in cases pending before the Court. The society has a black-tie dinner in New York City, attended by all the justices, at which generous donors receive special recognition. Contributors get to rub shoulders with the justices at the dinner and other events. Schenk encouraged his own donors and others in the antiabortion movement to become trustees by donating at least ten thousand dollars. That is one way Gayle Wright built her “missionary” relationships.
The society and its leadership deny that contributions influence matters before the Court, but that is not the point. The donors do not think they are buying results in particular cases. They think that their contributions give them access to justices, just as lobbyists use candidate fundraising to gain access to Congress and the White House.
No Ethical Guiderails
Despite its protestations of impartiality, the Court stubbornly refuses to be bound by the ethical rules that govern every other federal judge in the country. Those rules, embodied in the Code of Conduct for United States Judges, prohibit ex parte communications between judges and persons interested in their decisions and demands that judges avoid impropriety and the appearance of impropriety in all their affairs.
They likewise require recusal when a judge’s impartiality might reasonably be questioned or when a decision might affect a judge’s personal interest or the interest of a family member, and they prohibit fundraising for charitable organizations — even educational ones. By their refusal to be bound by these rules, the justices explicitly maintain that they may engage in conduct which for all other federal judges would be unethical. That includes indulging in the kind of relationships that have just been disclosed and presiding over cases in which a justice’s spouse, such as Justice Thomas’s wife and January 6 insurrectionist Ginny Thomas, is a vigorous advocate for or against a cause before the Court.
Result-Oriented Opinions
The six justices in the majority have signaled that they intend to select and decide cases in a way that advances goals of the far right, notwithstanding the pretense of calling “balls and strikes.” They have now issued multiple decisions in which they unashamedly torture precedent and rely upon biased recitations of history to support their desired outcome. There’s no denying this Court and its supporters care more about the results than the reasoning.
When justices vote on a specific case as the president who nominated them promised they would, the public justifiably perceives that this branch of government is no less political than the other two. When the explanations for their votes appear to be shallow or disingenuous, the skepticism mounts further.
The majority’s explanation in Dobbs v Jackson Women’s Health Organization for overruling Roe v Wade was that the Constitution did not contain a right to abortion and no such right was recognized at the time of the Fourteenth Amendment. This reasoning is shallow by any standard. By that rationale, there would be no right to obtain contraceptives, to marry a person of another race or of the same gender, or to the privacy of sexual conduct between adults. The dissenters wrote that the only reason the majority overruled Roe is because they have always despised it and went on to point out that the reason women did not claim a right to abortion in 1868 was that they had no rights at all. The dissenters got it right, but to those who oppose abortion, including Justice Alito’s dinner companions, whether the reasoning was sound or not is entirely irrelevant.
Similarly, in New York State Rifle and Pistol Assn v. Bruen, the Court twisted the text of the Second Amendment and misrepresented the history of firearm regulations in England, the colonies, and this country to justify invalidating virtually all state regulation of gun possession. The decision entirely ignored the harm to human life that it will cause, as well as the relevant history of firearms regulation and outright prohibition, but it was a victory for conservatives as well as for the gun lobby, which had donated multiple millions to the cause. None of them complains about hypocrisy.
This term in Moore v Harper, the Court is considering the bizarre notion that state legislatures are uncontrollable by state courts in deciding the manner of elections. It could not arrive at such a conclusion without some creative reinterpretations of the nation’s history. Even if the Court does not go so far as conservatives want, the fact that it has decided to hear the case at all is encouraging to those opposed to free and fair elections. The people who deny that President Biden won the 2020 election are salivating over the prospect of state legislatures having the final say on who wins and who loses the next one.
The Supreme Court is running the risk that it will lose its credibility and its decisions will no longer be accepted by the majority of Americans. In an interview last year, Professor Laurence Tribe put it succinctly. The danger, he said, is that if the court “becomes so headstrong and so out of touch with modern reality and so unwilling to listen effectively to counterargument and so agenda-driven and so committed to its, really, alternative facts,” then it’s likely people will eventually “start defying what it says.” He warned that point is getting closer.
This Court’s conservative majority is clearly committed to arriving at its preferred results. As Professor Tribe said, “when they’ve got the votes, they don’t even care about the reasoning.” It also seems that they do not care about the decline in credibility for which they are responsible. They are imposing an agenda and feigning impartiality. In the process, they put at risk the role our Constitution envisioned for a branch of government not affected by politics — and our democracy itself.
William W. Taylor III is a founding partner of Zuckerman Spaeder LLP and one of the country’s foremost litigators.
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