Terry H. Schwadron
Dec. 3, 2021
U.S. Supreme Court Justice Sonia Sotomayor had the most memorable line from the abortion case hearing on Wednesday when she suggested as part of a question about following precedents that the court would not “survive the stench” of illegitimacy if the court decision were to undercut abortion rights.
From the questions the justices asked, it seems clear that the court is likely to uphold a 15-week time limit sought in the Mississippi law under review, cutting the heart of “viability” from Roe v Wade, if not overturning it altogether. The practical effect will be a sudden race among states to be the further whittle away any promise of legal abortion in about half the country; even this week, Texas passed another law barring abortion pill distribution with threat of jail.
As many commentators noted, Sotomayor’s remarks and others were as much meant as messages to fellow justices as to any adjudication of the case before them. The “stench” she referenced reflects that the only difference between the earlier decisions on abortion and the ones coming this year is the makeup of the court.
By their own admission, a swing in partisan politics is not supposed to be such an obvious values shift in the name of law. Just compare what each of the antiabortion proponents said about Roe being settled law and precedent when they each testified at their own confirmation hearings.
Still, that political stench spreading in the liberal half of the country is unlikely to spur any attempts to remake the Court. It’s been more than six weeks since a presidential commission set up by Joe Biden to look at the makeup of the court and the nomination process for justices released its early thinking.
In its draft reports, that commission of government and academic figures cautioned that any move to increase the size of the Court might be perceived as partisan maneuvering, though it noted there is widespread support for term limits on the justices who currently enjoy life tenure. In any case, Biden seems to have walked away from the issues surrounding a Supreme Court widely perceived as having been turned significantly more partisan and conservative.
The hotly debated abortion issue is just the kind of spark that could rekindle efforts to change the court makeup. But we are so deep into problems connected to covid, economy, education, immigration, racial matters and getting any sizeable bill through the Congress altogether that it is unlikely to see Biden suddenly getting interested anew even in a topic that has his political base on fire.
Sotomayor had not been among the justices who have spoken out lately about the Supreme Court. Rather it had been the newest justice, Amy Coney Barrett, who told a conservative political audience that justices should not be seen as “political hacks,” a message then picked up in a fashion by Justices Stephen Breyer and Samuel Alito, representing differing blocs among the current nine judges.
Yet it was Sotomayor who asked the lawyer for Mississippi the key question: If nothing has changed in science, sociology, or law, why bring the case? Why did the Mississippi legislators argue that the time was right for the law because of a change of judges on the Supreme Court to assure a more favorable judgment.
In other words, why should we not see the justices as political hacks?
The prospect of three Donald Trump appointees to the Supreme Court cementing a conservative majority to undercut abortion rights, expand gun rights, abandon affirmative action and voter rights, overrule Biden White House policies, and potentially to look more kindly on judgments affecting the Big Lie over reputed election frauds made Supreme Court nominations a presidential election issue.
Biden’s response was a commission to investigate the prospects for institutional changes in the nominations process and court makeup, but then to sit on his hands.
So, here we are, with clear indications that the Supreme Court majority is likely to do some major surgery to rights decided in Roe v. Wade, and leave a chaotic state-by-state approach to legal abortion and its enforcement. You could start measuring stench even from the questions asked from the bench, or you can choose to wait until there is an actual decision probably some months from now.
Dim Chances for Change
But abortion as we know it is probably a goner, with more challenges to come. A case looms for expanded concealed carry gun rights in New York State (even after another school shooting case in Michigan), and there are plenty more for this conservative-leaning Supreme Court.
The whole concept of “individual rights” in this country is supposed to withstand temporal partisan changes. That is the basis of the constant challenges to gun control laws, for example, or more currently, to mandates for vaccines or forced medical insurance plans.
Simply put, if Hillary Clinton had been elected in 2016 rather than Donald Trump, this court would be saying there is a right to abortion in the United States. So, it’s partisan politics at work, not law, and certainly not an accepted “equal protection under the law.” Thus, stench.
With Republicans holding a 50–50 split in the Senate, don’t expect that Biden’s potential nominees as Supreme Court justices will fare well. If the Senate turns next November, it will be worse for any efforts to “balance the court.”
It was that thought that had spurred any liberal thinking about re-sizing the court, and thus the presidential commission.
The commission’s draft report said that while there was no “legal obstacle” to expanding the court — its size has varied over the centuries but has remained at nine since 1869 — “the risks of Court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the Court’s legitimacy.”
No kidding. We’re there anyway.
Among the more popular changes among those who testified to the commission were terms for 18-year service rather than life appointment, and some thoughts about giving each president three nominations to guarantee continuous change. Of course, doing so may requires Constitutional amendments, which would be more than difficult to achieve among three-quarters of the state legislatures.
Other suggested changes include a written code of ethics — on the current court, at least three justices hold stock portfolios — as well as expanded use of technology to broadcast court proceedings.
Meanwhile, the drafts have yet to make it to a formal presentation even to the White House.
Smell that stench yet?