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The conservative 6-3 majority on the Supreme Court is strongly signaling that it will overturn Roe v. Wade, the almost 50-year-old decision which made it illegal to ban abortion in the United States. Liberal justice Sonia Sotomayor rebuked her right-wing colleagues over the possibility of such a result with a pointed rhetorical question: “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.”
Sotomayor is trying to shame her colleagues, and with good reason. Criminalizing abortion and forcing women to give birth has been a major goal of the conservative movement. The 2018 Mississippi abortion ban the Supreme Court is hearing criminalizes all abortions after 15 weeks except in cases of medical emergencies or severe fetal abnormalities. Proponents of the law knew it was unconstitutional, but passed it anyway “because we have new justices.” Mississippi legislators, like everyone else, are aware that conservative justices have transparently been selected to gut Roe.
In this immediate case, calling for a depoliticized court is a last, Hail Mary effort by Sotomayor to shame the conservative justices into respecting pregnant people’s basic right to bodily autonomy. This is unlikely to work, though. And in the long run, denying that the court is a political institution is likely to do more harm than good to progressive causes.
Supreme Court justices like to present themselves as being above partisan and political concerns. By doing so, they increase their own prestige and power. If the Supreme Court is dispassionately serving the cause of law and justice, then the court is untainted by the muck and scrabble of faction. In this view, it is accountable only to truth and the Constitution, not to the public or to other political institutions.
Thus conservative justice Amy Coney Barrett has urged the public not to confuse judicial philosophies and political parties and “to evaluate what the court is doing on its own terms.” Voters are, in other words, supposed to pretend that justices aren’t political actors.
But of course justices are. In 2000, the conservative majority on the court by some strange coincidence chose the conservative candidate for president in a disputed election. And the court doesn’t just choose politicians; politicians choose the court. In 2016, then-Senate Majority Leader Mitch McConnell refused to hold hearings on Democratic nominee Merrick Garland for almost a year, allowing an open seat to go to conservative Neil Gorsuch following Trump’s election. And after Justice Ruth Bader Ginsburg died late in Trump’s term, McConnell rushed through Amy Coney Barrett as a replacement.
More, the court isn’t just a politicized institution. It’s a specifically and disproportionately reactionary one. Democrats have won the popular vote in every presidential election but three for the last 40 years. But the Supreme Court’s Republican majority has only widened.
This isn’t an accident. It’s built into the current system. The Senate, which approves justices, vastly overrepresents rural areas which are disproportionately white and disproportionately conservative. The electoral college and therefore the presidency, is tilted towards conservatives as well. That means reactionaries have a hammerlock on the Supreme Court, allowing them to gut voting rights, strengthen businesses over workers — and force people to give birth.
Progressives do have some options. They can try to rebalance the court by adding justices, for example. But that’s made more difficult by the myth that the Supreme Court is nonpartisan.
Democratic Justice Stephen Breyer, for example, has criticized plans for expanding the court because he says they would make the institution look partisan. President Joe Biden’s commission on Supreme Court reform also in its preliminary findings shied away from making changes that would actually do anything because they would “undermine, rather than enhance, the Supreme Court’s legitimacy.”
Is the legitimacy of the Supreme Court actually more important than women’s health and autonomy, though? Is it more important than protecting voting rights, which are actually the basis of democracy? If the status quo is broken, is the solution to try to fool the public into thinking the status quo is not broken? Or should we maybe fix it, before things get worse?
Sotomayor’s warning that the Roe decision will stink is well taken. But the Supreme Court already stinks and has for some time. We need to stop pretending that an egregiously partisan, openly anti-democratic, structurally reactionary court is some sort of model of deliberation and justice.
Our problem isn’t that the court may be perceived as illegitimate. The problem is that the court is in fact illegitimate. We need to change it, or the country will continue its steady march towards authoritarian nightmare, for women and for everyone else.