The Justices Are Having An Open Fight About The Legitimacy Of The Supreme Court

Arguments in the Mississippi abortion ban case came just a few months after justices publicly pushed back on the notion that they were political actors.

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Activists hold photos of US Supreme Court justices in front of the Supreme Court on Dec. 1.

WASHINGTON — During arguments Wednesday before the US Supreme Court in the fight over Mississippi’s 15-week abortion ban, the justices made clear they understood they weren’t just deciding the fate of abortion access — they were also deciding the future of the public’s trust in the court.

As much as the justices have insisted they don’t make decisions based on public opinion or partisan politics, on Monday they openly discussed their awareness of the legitimacy problem they faced and the perception that they function as an arm of whichever party elevated them to the bench.

The three members of the court’s liberal wing issued an urgent plea to their colleagues that rolling back or outright reversing Roe v. Wade, the court’s landmark decision establishing the right to an abortion, would shred what remained of the public’s faith in their status as a nonpartisan branch of government.

Justice Brett Kavanaugh — one of three justices confirmed under former president Donald Trump — countered that the existence of Roe itself was what forced the court to be a political player, and suggested that removing the court from the debate by getting rid of Roe and leaving it up to states to decide whether to ban or allow abortion could be the best way forward. Kavanaugh's confirmation was a huge political success for Republicans that deepened the court’s conservative majority and spurred anti-abortion advocates to make another push to end Roe.

Chief Justice John Roberts Jr., confirmed under George W. Bush, seemed to land somewhere in the middle, probing the lawyers for options for an alternative solution, although any decision that gives Republican-led states the green light to dramatically restrict abortion access would be a win for conservatives.

The case began as a challenge to Mississippi’s 15-week abortion ban. When the Supreme Court agreed to hear it, it broadened into a fight over what’s known as the viability standard — a long-standing precedent that bars states from banning abortion before a fetus can survive outside of the womb, usually at around 24 weeks of pregnancy. Mississippi’s lawyers and anti-abortion advocates then argued that the court should fully reverse Roe as well as another major abortion access cases that followed, Planned Parenthood v. Casey, which reaffirmed Roe and established what’s known as the “undue burden” test for reviewing state laws that restricted abortion access.

Justice Sonia Sotomayor, using some of the strongest language of the day, said she didn’t think the court could recapture the trust it would lose if it sided with Mississippi. Sotomayor, nominated by former president Barack Obama, noted that Mississippi lawmakers had cited the Supreme Court’s deepening conservative majority in explaining why they were enacting the ban. Later, she said she believed that if the court reversed Roe, states would see an opening to try to relitigate other issues that were still the subject of political and social debate, like marriage equality.

“Will this institution survive the stench that this creates in the public perception, that the Constitution and its reading are just political acts? I don’t see how it is possible,” she said. “If people actually believe that it's all political, how will we survive? How will the court survive?”

Justice Stephen Breyer, confirmed under former president Bill Clinton and the longest-serving of the liberal justices, quoted passages from Casey that talked about the high bar the court should set for itself in deciding whether to overturn a landmark decision like Roe. Paraphrasing one section, he said the reason the court had reached that conclusion in Casey was that: “There will be inevitable efforts to overturn it. Of course, there will. Feelings run high. And it is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure.”

The legal principle at play is known as stare decisis, which broadly refers to following rulings that the court has already made. Justice Elena Kagan, another Obama nominee, said that principle was needed to “prevent people from thinking that this court is a political institution that will go back and forth depending on what part of the public yells loudest and preventing people from thinking that the court will go back and forth depending on changes to the court’s membership.”

“In the end, we are in the same exact place as we were then, except that we're not because there's been 50 years of water under the bridge, 50 years of decisions saying that this is part of our law, that this is part of the fabric of women's existence in this country, and that that places us in an entirely different situation than if you had come in 50 years ago and made the same arguments,” Kagan said.

Mississippi Solicitor General Scott Stewart had kicked off Wednesday’s hearing by arguing that reversing Roe would get the court out of having to participate in the fight over abortion access going forward.

Roe and Casey, Stewart said, had “kept this court at the center of a political battle that it can never resolve.

Kavanaugh echoed Stewart’s point later in the hearing, asking if the solution to the court having to “pick sides on the most contentious social debate in American social life” was to find that the Constitution was “neutral” on the question of abortion, so the court should be too. Julie Rikelman, the lawyer representing the lone clinic in Mississippi that still provides abortion services, disagreed with Kavanaugh’s framing, arguing the Constitution wasn’t neutral on a person’s right to liberty, and that what states like Mississippi wanted to do was “take control of women’s bodies.”

Roberts, whose questions signaled he was open to getting rid of viability as the line for when states could ban abortion but wasn’t sold on reversing Roe outright, said he found Breyer’s comments about the importance of stare decisis “quite compelling.” But he said he also feared that the language in Casey supported a “paradoxical conclusion” that the more unpopular a decision was, the firmer the court should be about sticking with it.

Breyer came back to the point a few minutes later, saying that the court was an “institution” that relied on the public believing that its decisions were rooted in reason. He said the court had to be “damn sure” when it was overruling a major precedent like Roe that the normal factors the court would consider in any reversal “are there in spades, double, triple, quadruple.”

“The problem with a super case like this, the rare case, the watershed case, where people are really opposed on both sides and they really fight each other, is they're going to be ready to say, no, you're just political, you're just politicians. And that's what kills us as an American institution,” Breyer said.

Justice Amy Coney Barrett, Trump’s third and final nominee to the court, also explored how the court should decide when it was appropriate to reverse longstanding precedent, questioning whether “public reaction” was a factor they should consider when it came to a “watershed” decision — a term that’s been used to describe a handful of opinions in the court’s history, such as Brown v. Board of Education, which ended segregation in public schools.

Wednesday’s arguments came just a few months after several justices embarked on something of a public relations blitz, attempting to push back on the idea that they’re political actors whose decisions are based on partisan leanings.

“I think the media makes it sound as though you are just always going right to your personal preference. So if they think you are antiabortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician,” Justice Clarence Thomas, whom former president George H.W. Bush nominated to the bench in 1991, said in September during a lecture at the University of Notre Dame. “That’s a problem. You’re going to jeopardize any faith in the legal institutions.”

A few days earlier, Barrett had delivered a speech at the opening of the McConnell Center at the University of Louisville — named after Senate Minority Leader Mitch McConnell, who as majority leader last year successfully shepherded Barrett through a swift confirmation process — and told the crowd, “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”

Breyer wrote a whole book about the subject that was released this fall: “Political groups may favor a particular appointment, but once appointed a judge naturally decides a case in the way that he or she believes the law demands. It is a judge’s sworn duty to be impartial, and all of us take that oath seriously.”

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