It’s likely that 5 of the 6 conservative justices on the Supreme Court want to overturn Roe v. Wade. And they might. But there’s a cloud hanging over them — and the court — which they’re well aware of.
If they do, there will be immense political pressure to alter the Supreme Court itself, either by “packing” it with members, or term-limiting justices, or both.
The American people, by a large majority, support legal abortion in some form. Public opinion polling over the years has consistently shown that. In addition, America is not as conservative as the current makeup of the court, for example gun control is widely supported by the public, and this dissonance contributes to public frustration with the court.
But it would take more than just that to move Congress to action. It would take one too many provocations. The situation came close to that when Senate Republicans hypocritically rammed Amy Comey Barrett through a hasty confirmation process just before a presidential election — after blocking an Obama appointment in 2016 on the spurious ground that vacancies shouldn’t filled in a presidential election year.
This followed the Senate confirmation — by a single vote, with all Republicans voting for, and all Democrats voting against — of another conservative nominee widely viewed by progressives and liberals as an accused rapist.
Trump appointed 3 of the current 9 justices. He apparently regarded them as employees who would do his bidding when it came time to ask them to overturn an election he clearly and indisputably lost. They didn’t because, like all judges, they give their loyalty to the rule of law, not the man who appointed them. If that’s what Trump expected of them, he miscalculated.
They may hesitate to overturn Roe v. Wade, too — something Trump promised his supporters — as a matter of fidelity to the court’s tradition of honoring precedent (although it’s unlikely they would do so in deference to public opinion). But the Supreme Court isn’t immune to political pressure. As someone once said, they can read election returns, too.
After all that’s happened to date, the court’s conservatives — or enough of them — may calculate that’s a straw too many for the camel to bear. They may decide to restrict and compress Roe instead, while leaving a vestige of abortion rights intact, if only on paper.
President Biden has tried to deflect the Supreme Court issue. He shuffled the problem of his own supporters’ outcry against the GOP’s manipulation of the court, and the dirty and underhanded means by which they got an anti-Roe majority, to a study commission whose nominal task was to study “court reform,” but whose real job was taking the issue off the front political burner while Biden concentrated on issues more important to him and his presidency.
But the commission has completed its work, the court is about to determine Roe’s fate, and Biden will soon come under pressure to do something before the Democrats lose the congressional majorities in next year’s mid-term elections. (Read story here.)
A Yale professor says “if the justices curtail abortion access,” progressives’ demands to expand the court “may grow too loud for Biden to ignore.” That would be “a new political reality that Biden will have a hard time ignoring.” Of course, that doesn’t translate into legislation; it takes only one Democratic defector in the Senate to block any bill, even if you can get around the filibuster, and there likely would be two of them.
But, the Senate aside, Biden obviously is the starting point and a key player in whatever happens, because nothing will happen that he doesn’t sign onto. Most Democrats are furious about McConnell’s manipulation of court appointments in the Senate, and that will turn into fury if Roe v. Wade is overturned. Many are already impatient with Biden, viewing his court commission as “a dodge.”
Nevertheless a University of Chicago law professor observed the commission “plausibly increased pressure for reform by giving visibility to individuals speaking up in favor of reform.” An Ohio law professor added, “I think if Roe and Casey are overruled, court packing will be a major issue in the midterm elections.” (“Casey” refers to Casey v. Planned Parenthood, a Supreme Court decision after Roe v. Wade that allowed some restrictions on abortion.)
Abortion rights aren’t the only tinder for political backlash against the court. Democrats are also angry about gun control, the Citizens’ United decision that allows “dark money” in politics, the court allowing unrestricted gerrymandering, and a looming erosion of church-state separation. The court is on relatively safe ground as long as its rulings are seen as products of legal deliberation; but the justices will be standing on quicksand if the public comes to view them as a politicized court doing the partisan bidding of a political party that hijacked the appointment process.
Supreme Court justices aren’t political naifs, they understand this perfectly well, and it will be interesting to see how they manage it in their rulings to come.
The problem with Roe v Wade is Congress has never passed laws instituting it or a Constitutional amendment making abortion legal. [Edited comment.]
Why would they, if it’s already a constitutional right? Which is what Roe v. Wade said abortion is. Of course, what the court gives, it can take away, which is why Democrats are now talking passing about federal abortion legislation. Washington State legalized abortion in 1970 by a vote of the people (Referendum 20), and that law along with a companion measure passed by voters in 1991 is still on the books. Therefore, an adverse Supreme Court decision on Roe v. Wade won’t affect abortion in Washington (or other states with similar laws).