IN AUGUST 2020: 70% OFAMERICANS HAD FAVORABLE APPROVAL OF ROE V WADE

 

… Thousands of abortion rights protesters outside the Supreme Court express grief and anger following the historic Supreme Court abortion ruling.

 

This decision is causing the Democrats to once again consider increasing the number of Justices on the high court

 

What is this country coming to?  First, the Supreme court’s conservative majority invalidated a 108-year-old New York state law that restricted who can carry concealed guns.  A law that is supported by nearly 8 in 10 New Yorkers.

Now, the same court has overturned a law that has survived multiple challenges over the last 49 years, for a woman’s right to choose whether or not they would continue their pregnancy.

The U.S. Supreme Court’s new conservative majority boldly signaled with these twin rulings this week that public opinion would not interfere with conservative plans to shift the nation’s legal landscape.

Rather than ignore the demonstrators, Justice Samuel Alito Jr., writing for the majority in the abortion decision, attacked the notion that the court should consider the public’s will. He quoted late chief justice William Rehnquist from a previous ruling: “The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights.”  Most of us don’t think that is what the former chief justice meant with his statement.

There are 13 states with Republican run legislatures that have what is called a “Trigger Law”.  That is a law that was passed by the majority that would immediately go into effect if Roe V Wade were overturned by the high court.  Yes, some states have a short waiting period, such as 10 days, but the “trigger” is still valid.

Alito had the gaul to say the following in his decision: “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey,” Alito continued in the court’s opinion in the case that overturned the constitutional right to abortion. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”

There were 10’s of thousands of demonstrators in all the American major cities right after the announcement from the high court.  And you can expect them to continue for weeks and months.  I have personally never seen such an immediate response to a supreme court decision, but I should probably have expected it for such an important decision.

It is obvious that the Republican party was playing the long game regarding the abortion issue.  They worked for decades to make the court have a conservative majority for them to get Roe v Wade overturned.  It took the past three Republican presidents to get the appointees they wanted for this overturn.

It started with the nomination of  Justice Clarence Thomas from President George W. Bush.  And this court justice now says that other precedence decisions by the court should be reconsidered, such as the law that approves same-sex marriages, and other similar laws that were decided well after the original signing of the U.S. Constitution.

Maya Sen, a professor of public policy at Harvard University, is one of several academics who have noted the recent shift by studying public polling on issues decided by the high court over the course of more than a decade.  “Up until a couple years ago, it used to be the case that where the court fell was well within the lines of the average Americans’ positions,” Sen said. “Now we are estimating that the court falls more squarely in line with the average Republican, not the average American.”

The shift has created what Democrats view as a political opportunity: to use the court’s recent rulings, particularly around abortion, to mobilize voters in the fall. The entire Democratic establishment, including the White House and Congress, has united around the strategy, making anger at the court’s ruling one of the few clear pitches that the party is deploying for the midterm elections.

Former attorney general Eric Holder, an Obama appointee, released a statement calling on reforms to the Supreme Court’s structure “to ensure that the Court serves the interests of the people instead of the interests of an extreme, minority faction.”

The conservatives on the Court are much more conservative than the majority of the American people,” said Erwin Chemerinsky, the dean of the University of California at Berkeley School of Law. “These decisions will have a long-lasting effect on the Court’s legitimacy. It is unclear at this point what that will mean.”

A January Pew Research Center poll found that 54% of Americans had a favorable approval of the court, down from 70% in August of 2020, just before the death of Ruth Bader Ginsburg. Favorable approval among Democrats was at 46%, down from 67% in August of 2020.

Historically, justices have been wary of using public opinion directly as a rational for their rulings, but that has not stopped them from citing shifting mores. Justice Anthony Kennedy’s 2003 decision in Lawrence v Texas, which overturned laws against sodomy, noted an “emerging awareness” of protection for the private conduct of consenting adults and a clear trend away from legislatures outlawing the practice and states enforcing those laws.

Similarly, Kennedy noted “a shift in public attitudes toward greater tolerance” of same-sex couples in his 2015 opinion in Obergefell v Hodges, which recognized a constitutional right for those couples to marry.

Ironically, Rehnquist, the justice whom Alito cited Friday to argue that public opinion should not affect judicial rulings, had a rather contradictory record on the topic. As a law clerk to Justice Robert Jackson in the 1950s, he wrote a memo to his boss suggesting that Southern racial segregation should be allowed to continue because it was “not part of the judicial function to thwart public opinion except in extreme cases.”

Once he joined the court, he was asked whether justices should isolate themselves from public opinion. He did not embrace a clean separation, according to a 2005 profile by the Atlantic.

“My answer is that we are not able to do so, and it would probably be unwise to try,” he said.

Unfortunately, the current conservative justices don’t agree with Kennedy’s approach to this kind of issue.

Copyright G. Ater 2022