No wonder politics rules the Supreme Court
During Supreme Court oral argument in the Mississippi abortion case, which has now resulted in a draft decision overturning the Roe v. Wade, Judge Sonia Sotomayor issued an ominous warning.
“Will this institution survive the stench it creates in the public perception that the Constitution and its reading are just political acts? she asked. “I don’t see how it’s possible.”
POLITICO’s historic scoop last Monday — the dynamite leak of a 5-3 ruling allowing each state to pass its own abortion laws — threw a grenade into the midterm elections. President Biden called on Congress to codify abortion choice, which had been protected by legal precedent for nearly 50 years, and to do so quickly before Democrats lose what little control they now have. .
That would likely require abolishing the Senate filibuster – a whole other matter, with implications far beyond abortion. In their rush to enshrine abortion choice in statutory law, Democrats should remember everything they’re doing now that Republicans can reverse — or do more — when they regain control next year. .
The House last year passed its “Women’s Health Protection Act,” codifying Roe’s protections, but the Senate has refused to take it up. Senators Joe Manchin of West Virginia and Bob Casey of Pennsylvania are the Democrats standing in the way – while Republican Senator Lisa Murkowski of Alaska and Susan Collins of Maine are expected to break ranks with the GOP and side with pro forces -choice.
Women should feel betrayed, having voted for Justices Brett Kavanaugh and Neil Gorsuch in hopes they would leave abortion alone. The three Trump appointees were among the judges who struck down Roe in the leaked draft notice.
As Sotomayor warned, the abortion case has renewed complaints that the Supreme Court has gone from ruling to politics. This probably surprises every American who gets most of their news from Sesame Street.
We might wish that the judiciary was a Greek temple of pure philosophical reason, delivering the wisdom of a plane elevated above the punches and blind spots of partisan politics. But it’s not.
Was it politics when Eisenhower won the support of the California delegation to the 1952 Republican National Convention by signaling that he would nominate Governor Earl Warren to the Supreme Court? Was it politics when Warren retired and Lyndon Johnson tried to appoint his friend Abe Fortas as chief justice and put his Texas pal Homer Thornberry on trial in 1968?
Andrew Jackson ignored an 1832 Supreme Court edict, saying of the Chief Justice, “John Marshall has made up his mind; now let him apply it. Franklin Roosevelt called the court “the nine old men” and tried to fill it with new blood more favorable to his New Deal.
And now there are new rumblings about adding more justices to get what Democrats want.
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Nixon didn’t even try to hide his Southern strategy by appointing Justices Clement Haynesworth of South Carolina and G. Harrold Carswell of Tallahassee in 1970. Was it politics when Reagan tried to put Robert Bork – the villain of the Watergate-era Saturday Night Massacre – off the bench?
What about President Obama’s choice of Merrick Garland, which was blocked by a Republican Senate? Or Trump’s three choices? Was Biden’s campaign promise to appoint the first black female judge more or less political than Trump’s pledge to appoint anti-Roe judges?
How about the smear campaigns mounted against Kavanaugh and Judge Clarence Thomas during their confirmation hearings? Or Senate Majority Leader Charles Schumer, DN.Y., shouting threats against the justices — by name — on the courthouse steps?
Of course, these are things done in court by politicians, not actions of the judges themselves. But in its most volatile decisions — from pre-Civil War Dredd Scott to the 1954 school integration case and today’s abortion rage — the court has often been steeped in politics.
This time, polls show that about 70% of Americans support the choice of abortion. If the Republicans want to line up with the remaining 30%, that’s their choice and their court.
Too bad the high court cannot be a temple of pure reason and apolitical justice. Too bad our laws are not influenced solely by an idealistic awareness of what the country needs, what the people deserve. But politics is what we have, the way we govern the country.
Politics is not the “stench” Judge Sotomayor called it. It’s just a sad reality.
Bill Cotterell is a retired journalist from the Democratic capital of Tallahassee who writes a column twice a week. He can be contacted at firstname.lastname@example.org
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