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Opinion: We Can Not Make the Supreme Court Political

There has been quite a lot of discussion regarding the Supreme Court after their landmark Dobbs v. Jackson Women’s Health Organization ruling, which overturned the Roe and Casey rulings. The Dobbs ruling essentially ended the federally guaranteed right to an abortion and brought back that debate to the states. Some have called for President Biden to pack the courts to add more justices and tilt the favor back for more liberal rulings. Others have taken more drastic measures by paying for sightings of the U.S. Supreme Court justices who overturned Roe. Regardless of your political position, we need to be very careful with how we view the Supreme Court, as it is the fundamental glue that holds U.S. Democracy. 

Absurdly Quick Explanation of the U.S. Democracy

The United States of America has the oldest democracy in the modern world. Three branches of government are meant to check and balance each other, while at the same time uphold the fundamental rights of all people in the United States. The legislative branch is made up of the House of Representatives (435 members total distributed by a rough representation of the population per state) and the Senate (100 members total, 2 per state); these two bodies make up the U.S. Congress. As pointed out by the name, this branch oversees legislating on behalf of the people by passing laws. The executive branch is made up of the President who is tasked as the Commander in Chief of the Armed Forces and upholder of the laws of the United States. The Judicial Branch is where the Supreme Court sits, alongside other federal courts. Every year the court convenes and hears select cases that challenge the legitimacy of the Constitution by saying if these laws are constitutional or not. Each branch is essentially meant to make sure that no one branch has more power than the other and work in tandem to maintain the freedoms bestowed to us as a nation.

Development of Abortion Rights in the U.S. From Roe to Dobbs

The pinnacle abortion case that everyone talks about to some extent is Roe v. Wade (1973). The case gave women in the United States the constitutional right to an abortion by a 7-2 ruling in the court, citing the “Due Process” clause of the Fourteenth Amendment. The Court created a timeframe of when states could regulate abortion by breaking up pregnancy into trimesters. The first trimester focused on the woman’s decision regarding her pregnancy, the second trimester allowed states to impose some regulation to protect the woman’s wellbeing, and the third trimester established that the fetus had viability and thus had to be protected. Roughly twenty years later, Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) defended the Roe ruling stating that states cannot impose abortion restrictions that place an “undue burden” upon women. However, in June 2022, the Supreme Court issued the Dobbs v. Jackson Women’s Health Organization (2022) ruling that overturned the ruling of Roe and Casey and states that there is no constitutional right to an abortion. As a result, the issue of abortion is transferred back to the states.

Argument for the U.S. Supreme Court to stay as is

While I have been focusing on the Supreme Court’s rulings on abortion, there is obviously so much that it regulates. The ruling had set off a firestorm on social media and across the country calling the court partisan and bigoted. The New York Times ran an image showing the court broken up by liberal and conservative “blocs.”

Image from NY Times

Image from NY Times

Donald Trump was able to get 3 Justices onto the court – Gorsuch, Kavanaugh, and Barrett. Each of them had their appointments covered with drama. Gorsuch was able to get the seat vacated by Scalia after President Obama’s original pick Merrick Garland did not even get a senate hearing in 2016 (1 year before Obama stepped down from the presidency). Kavanaugh’s appointment was notably regarded as the most controversial, as sexual assault and misconduct accusations began to surface. Barrett’s appointment met the ire of Democrats as her views were seen as the opposite of the justice she was replacing, Ruth Bader Ginsburg.

The political discourse in the United States has unfortunately been more and more divisive. A study by Pew has found that 85% of Americans believe that the tone of political debate has been more negative. This ruling showed just that. When Roe passed, it set off anger against those who were pro-life. Now Dobbs has set off anger with those who are pro-choice. 

In all the anger of this ruling, some forget the basic premise of this branch of government – it is meant to interpret the law of the United States. We cannot judge the court by the political affiliation of the Presidents that elect them. The Supreme Court is not in place to help the President or Congress pass legislation; it is there to determine merit.

For those on the left who are mad with the Dobbs ruling and want an overhaul of the Supreme Court, this is the same six conservative member court that rejected Donald Trump’s push to challenge the 2020 election as not enough evidence of fraud was presented. Additionally, the 2019 term of the Supreme Court (below chart) saw each of the conservative justices voting with the liberal bloc of the court with Justices Roberts and Gorsuch siding with them on LGTBQ issues in the Bostock Case (2020).

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In 2021, President Biden signed an executive order creating a bipartisan commission to review proposed changes to the Court. As the Court comes under scrutiny from the masses, I would argue that while perhaps age limits should be reviewed, we should not pack the Court in any way nor apply term limits nor apply supermajority votes to weaken the powers of the Court. 

Is our form of democracy perfect? Absolutely not. Perfection is not the reason our institutions have stood the test of time. It is because as a nation we made sure that our institutions did not overpower the voice of the people they were made to represent. We debate as people of this nation and vote for our elected officials. They in turn provide us with the judges for the highest court in the land to decipher and legitimize if laws have merit in our country. They did not write a law for or against abortion- that was something to be done by our government that til this day has not been federalized in Congress. There is a certain wisdom that our founders bestowed on the Court with lifetime appointments for Justices. They can stand the test of time of any President and Congressperson and thus are not held to their debt. Adding more Justices would just be a cheap mockery of the Court as it would set precedent for future Presidents to do the same if they wanted. While many people are unhappy with the Dobbs ruling, we need to think about the long-term vision of our country and leave the Supreme Court as it currently stands- a vital fabric that holds our democracy together. 

Sources:

https://www.nytimes.com/interactive/2022/06/24/us/politics/supreme-court-dobbs-jackson-analysis-roe-wade.html

https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/09/president-biden-to-sign-executive-order-creating-the-presidential-commission-on-the-supreme-court-of-the-united-states/

https://www.politico.com/news/2022/07/28/doj-official-pressed-on-targeting-of-supreme-court-justices-00048506

https://www.axios.com/2022/07/09/shutdowndc-supreme-court-abortion-roe-protest

https://www.axios.com/2022/06/24/roe-wade-decision-abortion

https://www.trumanlibrary.gov/education/three-branches/three-branches-of-government

https://www.britannica.com/event/Roe-v-Wade

https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm

https://news.bloomberglaw.com/us-law-week/roberts-gorsuch-cross-over-votes-deliver-wins-for-liberals

https://www.npr.org/2020/06/15/863498848/supreme-court-delivers-major-victory-to-lgbtq-employees

Image Credit – https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket 

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