Jurisprudence

The Supreme Court’s Legitimacy Is Already Lost

Regardless of Roe falling, the leaks, and the court’s disregard for the public it is supposed to serve, have already gone too far.

Police officers move barriers in front of the U.S. Supreme Court.
Police officers move barriers as activists gather at the U.S. Supreme Court on Monday. Stefani Reynolds/Getty Images

If the Supreme Court indeed strikes down Roe v. Wade and Planned Parenthood v. Casey this June, as the draft opinion leaked to and published by Politico tonight suggests it will, years of conventional wisdom about the court and its concerns for its own legitimacy will be proved wrong. Every single court watcher who spoke in terms of baby steps, incrementalism, or “chipping away” at one of the most vitally important precedents in modern history will have been wrong. Those who suggested the court would never do something so huge and so polarizing just before the November midterms will have been wrong. And the people who assured us that Brett Kavanaugh and Amy Coney Barrett were moderate centrists who cared deeply about the appearance of a nonideological and thoughtful court—well, yeah. They will have been wrong too.

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If this draft opinion becomes precedent of the court, the results will be catastrophic for women, particularly for women in the states that will immediately make abortion unlawful, and in those places, particularly for young women, poor women, and Black and brown women who will not have the time, resources, or ability to travel out of state. The court’s staggering lack of regard for its own legitimacy is exceeded only by its vicious disregard for the real consequences for real pregnant people who are 14 times more likely to die in childbirth than from terminating a pregnancy. The Mississippi law—the law this opinion is upholding—has no exception for rape or incest. We will immediately see a raft of bans that give rights to fathers, including sexual assailants, and punish with evermore cruelty and violence women who miscarry or do harm to their fetuses. The days of pretending that women’s health and safety were of paramount concern are over.

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For all the shock that has been expressed at what is truly a shocking opinion, polling suggests that the American public may turn its shock into legitimate political anger. CNN polling from January showed that just 30 percent of Americans wanted the court to overturn Roe v. Wade, and 52 percent said that should Roe be overturned, they would want their state to become a safe haven for women seeking abortion. Thirty-five percent said they would be angry if the ruling were overturned, compared with just 14 percent who said they would be happy.

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But in his draft opinion, Justice Sam Alito wants America to know he doesn’t care about voters’ feelings. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito writes. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”

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Ironically, whoever decided to leak the opinion cared very much about the political implications of the impending decision. It is one of the most brazenly political acts to ever come out of the court, actually. It is perhaps the most emphatic confirmation that there are simply no rules left at an institution that is supposed to be the one making the rules, but is instead currently under unprecedented public scrutiny for its very absence of binding rules. The same Supreme Court that blames journalists for its sinking polling numbers and refuses to be bound by ethics rules wants you to know that it doesn’t answer to politics. But it surely produces politics.

In other words, in addition to Alito’s sneering references to “abortionists” and eugenics and his gleeful mockery of the authors of both Roe and Casey, anyone who believed the court would pretend to have any solicitude whatsoever—for women, for public opinion, for its own reputation as a moderate branch—was well and truly kidding themselves. This draft opinion, whatever may be done to it in the days to come, is Exhibit A for anyone who believed that time or history or respect for their colleagues or the justices who came before them would moderate the five justices in this current majority, a majority that ought to know it stole its way into a majority but again refuses to even feign self-moderation in the face of that fact. We knew this when Texas’ S.B. 8 law banning abortion after six weeks was decided on the shadow docket in September, and when the court let it stand again this winter. We knew it when we watched the Dobbs arguments last fall. Roe had already been effectively overturned then—we have just had trouble catching up.

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It is hard to keep this in perspective tonight, in light of the shattering ruling it portends, but there are real and enduring consequences to the fact that the draft opinion was leaked. There are real and enduring consequences to the fact that someone told Politico what the vote count was, that “four of the other Republican-appointed justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.” There are real and enduring consequences to the fact that we now seem to know what Chief Justice John Roberts wants to do, already. The implications for trust and confidence in secret proceedings for the nine justices are stunning. The leaks from the court around Justice Neil Gorsuch declining to wear a mask at oral arguments this winter were a dry run for today’s. Whatever norm had been keeping the justices from showing us their Real Housewives of 1 First Street antics is now gone as well.

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The court will surely suffer for this shattering self-own to its own legitimacy. But the rule of law and the public will suffer as well. The three Republican-appointed justices who authored the plurality opinion in Casey knew very well what would happen to the court if it disregarded and disparaged the American public, the Constitution, and itself. Be afraid for what’s coming next in terms of personal autonomy and liberty, for LGBTQ protections and the right to contraception, yes. But be equally afraid for the abstraction of an independent and principled judiciary. No matter what happens next, that’s already lost.

For more of Dahlia Lithwick’s legal analysis of Roe v. Wade, please listen to this recent episode of Amicus.

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