Public opinion hasn’t changed. The science hasn’t fundamentally changed. No new legal theory has been promulgated. The only difference is the court now has a majority hellbent on settling scores in the culture wars. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked her colleagues. “I don’t see how it is possible.”
There’s good reason, Justice Elena Kagan said, why the Supreme Court has given great weight to precedent — and particularly to “super precedent” such as the 1973 Roe decision, affirmed by the 1992 Planned Parenthood v. Casey decision. It’s “to prevent people from thinking that this court is a political institution that will go back and forth depending on what part of the public yells the loudest.”
Before Kagan spoke those words, I had spent the morning outside the court, watching abortion foes literally shout down the other side. Police used metal barricades to split First Street NE in front of the court into equal sections for the opposing sides, each with a soundstage. Not content with that arrangement, a group of antiabortion demonstrators invaded the other side and took turns drowning out the speakers there with a pole-mounted bullhorn at ear-shattering volume:
“Maybe some of you should have been aborted, you wicked, nasty disgusting, ungodly — I don’t even want to call you women! You are bloodthirsty animals!”
“This is what happens when you allow women to emasculate men! God hates you!”
“In the name of Jesus Christ, shut your vile, sick mouth!”
They heckled a Black speaker: “Go to Chicago! Black-on-Black killing is off the charts! … You don’t mind taking the White man’s dollar when he wants to kill babies!”
It was the abortion debate in a nutshell. There were at least as many abortion rights activists in the crowd. They carried balloons saying “Bans Off Our Bodies,” and fake People magazine covers calling Justice Brett Kavanaugh the “Sexist Man Alive.” Some held a sit-in on Constitution Avenue. Some chanted “Ho-ho, hey-hey, abortion rights are here to stay.” Lawmakers and other speakers voiced earnest bromides: “Abortion is essential … Fair and equitable treatment … Oppression has no place in America.”
But the other side was louder, and full of rage. They displayed scores of posters showing bloody, larger-than-life fetuses and body parts. They got in faces. And they screamed. “You deserve capital punishment! … You deserve what’s coming to you! … You’re a vile, anti-God, anti-Christ sicko!”
This is what the Roberts Court has chosen to reward.
Overturning Roe will complete the court’s decline into political hackery that began with Bush v. Gore, continued with Citizens United (corporations are people!), accelerated with the gutting of the Civil Rights Act in Shelby County v. Holder, and reached terminal velocity with the virtual theft of a court seat by Senate Republicans in 2016. Now, after conservatives complained for years about the “arbitrary” standard of fetal viability, the justices are considering a more arbitrary standard of 15 weeks. Is it any wonder public confidence in the Supreme Court just hit a new low?
Justice Stephen Breyer, the court’s senior liberal, referred to the damage. “We have to have public support,” he said, "and that comes primarily from people believing that we do our job.” Breyer said Americans would conclude from the overturning of Roe that justices are “just politicians. And that’s what kills us as an American institution.”
The conservative justices seemed unconcerned. Justice Amy Coney Barrett said respect for precedent is “not an inexorable command.” Kavanaugh claimed the right to abortion was a mere “interest” that states could disregard.
Scott Stewart, arguing for the Mississippi ban, exhorted the justices to “stand strong and stand firm in the face of whatever is going on.”
Here’s “whatever” is going on: About half the states would effectively ban abortion once the Supreme Court rules, many without exceptions for rape or incest. Rich women could still travel for abortions. Poor women, and disproportionately women of color, would go to back alleys or be forced to give birth, often at risk to their lives.
Here’s whatever else is going on: “The court has never revoked a right that is so fundamental to so many Americans,” argued Biden administration solicitor general Elizabeth Prelogar, “and so central to their ability to participate fully and equally in society.”
Until now, that is. Roe is dead. It’s all over but the shouting.