Last week’s U.S. Supreme Court oral arguments in the case of Dobbs v. Jackson Women’s Health represented a a possible turning point in decades of abortion-related jurisprudence, but perhaps even more importantly, they revealed the degree to which the liberal wing of the party has already eroded the legitimacy of the institution in the eyes of the people.
The inherently flawed approach taken by the liberal justices at the high court is discussed comprehensively in a recent op-ed by the Washington Examiner, which takes those jurists to task for their apparently overarching concern not about hewing closely to Constitutional principles, but rather about remaining in the good graces and high esteem of the public.
Throughout the arguments made on both sides of the case that, as many commentators have pointed out, has the potential to overturn – or severely limit the scope of – Roe v. Wade, the liberal members of the high court expressed their concern about upending the “super” precedents, lest such a move “[kill] us as an American institution.”
As the Examiner editorial board notes, any approach that involves “filtering constitutional jurisprudence through public relations concerns is improper. It undermines the very Constitution the justices are sworn to uphold.”
Startlingly, these justices made no apparent attempt to conceal where their true concerns seemed to lie, content to subordinate the text of the Constitution to worries that reversing Roe and its progeny, such as Planned Parenthood v. Casey would “weaken the Court’s capacity to exercise the judicial power.”
Such a philosophy was, as the Examiner noted, expressed clearly in the Casey opinion itself, which declared, “The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the judiciary as fit to determine what the nation’s law means and to declare what it demands.”
This twisted interpretation of the court’s role suggests that preserving the “legitimacy” of the institution takes precedence over achieving a correct interpretation of the Constitution and the law, when in fact, it is precisely that kind of focus on public relations that sinks the citizenry’s faith that the judiciary is, indeed, independent.
The liberal justices’ determination to hold fast to the power snatched from the states through the invention of a right to abortion that appears nowhere in the Constitution has, the Examiner piece argues, undermined democratic processes and caused profound harm to the prospect of achieving appropriate, legislative solutions tailored by elected bodies in response to the needs of those they serve.
The protestations from Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor that undoing Roe at this late date – a decision with which even the late liberal icon Justice Ruth Bader Ginsburg took fairly serious issue – would cause irreparable damage to the legitimacy of the institution ring rather hollow, considering the harm they have already done to it themselves.