A Political Court Attacks Roe
The Argument that Justices are Neutral Arbiters of the Law is a Lie
There is no such thing as an apolitical court. Judges are appointed at all levels because of their stances on issues of importance to the people and the bodies making those appointments. These political bodies expect results, and more often than not they get them.
The U.S. Supreme Court is no exception. A cursory look at its history should make that clear, from its rulings on slavery and slavery-related issues, to the shifts in civil rights laws, the death penalty, and abortion. The justices are political animals usually adept at either reading the tea leaves of the political zeitgeist or imposing their politics on the nation through the institutional levers they possess.
The Right has long understood this. For decades, is has used criticism of a “Liberal Court” that it says is “out of control” to raise money and organize politically, using the culture war as a stand in for its larger efforts to redefine American democracy narrowly to cover only a select segment of the populus.
Thursday’s 5-4 decision by the U.S. Supreme Court to deny an emergency appeal from abortion providers seeking to prevent the law from going into effect is a direct result of this approach to the court and part of a larger assault on democracy, as Rebecca Solnit wrote this week.
The Texas law, as The Guardian writes, “bars abortion once embryonic cardiac activity is detected, which is around six weeks, and offers no exceptions for rape or incest,” and it “empowers any private citizen to sue an abortion provider who violates the law.” The law is likely to open “the floodgates to harassing and frivolous lawsuits from anti-abortion vigilantes that could eventually shutter most clinics in the state.”
The court’s “shadow endorsement” of the Texas abortion law, says Solnit, is part of the Right’s broader assault on democracy, an assault structured around “violence and lies,” that empowers a shrinking minority to protect its power by stripping power from others. She argues in The Guardian that the “very language of the law is a lie” that is built on other lies and connected to a set larger lies about viability, access, and the reasons women choose abortions in the first place.
“The rightwing stance on abortion,” she says
is often treated as a contradiction coming from a political sector that sings in praise of unfettered liberty to do as you like, including carry semiautomatic weapons in public and spread a sometimes fatal virus. But like the attack on voting rights in Texas happening simultaneously with the attack on reproductive rights, it is of course about expanding liberty for some while withering it away for others. The attacks on reproductive rights seek to make women unfree and unequal; the attacks on voting rights seek to make people of color unfree and unequal; women of color get a double dose.
This, she adds, “is the logical outcome of a party that, some decades back, looked at an increasingly non-white country and decided to try to suppress the votes of people of color rather than win them. Not just the Democratic party but democracy is their enemy.”
The court, as I said, is part of this long-standing project. The 5-4 decision — made behind closed doors, written without there being oral argument, and announced in a single, unsigned, paragraph — is the height of judicial arrogance. Emergency positions were supposed to be a way to clear from the docket somewhat less controversial cases, to open time up for the more substantive and controversial cases — like discussions of Roe.
Instead, as Dahlia Lithwick writes in Slate, we get what she calls the equivalent of “legal mansplaining.”
The decision, Lithwick says, “functionally ended abortion rights for most women in Texas last night merely because they could,” using “impressionistic, frayed shadow docket reasoning” to underpin “their personal feelings about the constitutional right to abortion.” But, Lithwick adds, it goes much farther.The court, she says, “opted to end virtually all abortion rights in Texas, in the full knowledge that they were blessing an unconstitutional and brutal piece of lawless vigilantism, because it’s only about women.”
This is the court we have now, one that is likely to endorse the prerogatives of corporate power while attacking any semblance of protections for women or minorities. This is why the left opposed Brett Kavanaugh and Amy Coney Barrett, why the death of Ruth Bader Ginsberg was so damaging. The opposition was less partisan than it was ideological and philosophical, more about what the court might do than who made the appointments — though, the recent history has made clear that the party of the appointing president matters far more than in almost any previous point in our history. It is not about calling balls and strikes, as Chief Justice Roberts said during his confirmation. It is not solely about qualifications, whatever that means. It is about power — the power to determine who counts in the United States of America.
The court, however, wants us to believe it is not about the court at all, that all it is doing is judging laws on their merits. Except, as Charlie Savage writes in The New York Times (https://www.nytimes.com/2021/09/02/us/politics/supreme-court-shadow-docket-texas-abortion.html” the “shadow docket” — or the use of “emergency petitions that often yield late-night decisions issued with minimal or no written opinions” — is a “powerful tool for affecting public policy without fully hearing from the parties or explaining its actions in writing.”
William Baude, a University of Chicago law professors who is credited with coining the term, told Savage that there are several problems with its use, such as whether the court is rushing and potentially making mistakes, that the process lacks transparency, and that the parties to the case do not get to make their case in front of the court.
The Texas law, he told Savage, raises additional questions about fairness and even-handedness — i.e., whether it is calling balls and strikes or whether it is rigging the process.
“I think the real concern is the court has been reaching out aggressively in some of the immigration cases and Covid cases, and here it is not,” he said. “And why is it when it’s a Covid restriction in church service, the court rushes in, in the middle of the night, to stop the government, but when it’s an anti-abortion law, the court lets it go?”
The answer, I think, goes back to ideology. The court has a vision of America that guides its actions. It has incredible power, and it has lifetime appointments. The left has not made the court a real issue, focusing on more immediate concerns, and that has allowed the right to control the discourse about a branch that has as much authority in the scheme of our government as the other two. It is unclear whether this represents the founders’ vision, which is usually how the question is framed, but the founders’ vision really shouldn’t matter. The world has changed dramatically since they crafted the Constitution and those changes demand a new way of looking at the court and other aspects of our government. Lifetime appointments, a static number justices, the lie that these black-robed folks are somehow above the politics of the moment — it’s time to reconsider whether any of this makes sense in the 21st Century.