Can the Supreme Court survive the stench?

By Zachary Margulis-Ohnuma

Two unprecedented things happened in the legal world this week. First, someone at the Supreme Court—in an unheard of breach of protocol—leaked the draft opinion in Dobbs v. Jackson Women’s Health out to the public. Second, the substance of Dobbs draft indicated that for the first time ever, the Supreme Court is planning to run roughshod over the principle of stare decisis and roll back an individual right. These developments go beyond even the immediate question of abortion that the Supreme Court is deciding and go to the heart of the kind of democracy we will live in going forward.

Let’s start with abortion. Dobbs is likely to explicitly overrule Roe v. Wade and Planned Parenthood v. Casey, which forbid states from restricting or unduly burdening access to abortion in the first six months of pregnancy. Abortion is an important medical procedure that should be easily accessible to all women. Restrictions on abortion—driven mostly by privately held religious ideas—cause misery. Studies have clearly correlated the sharp decrease in crime in the 1990s with the coming of age of the last generation who did not benefit from Roe v. Wade. In other words, crime went down because people who were born to mothers with access to abortion after the 1973 Roe decision committed less crime when they hit their late teens than people born before Roe. Reversing Roe not only infringes on women’s autonomy and medical freedom (denying women equal protection under the 14th Amendment), it will force a generation of unwanted children into the world with tragic consequences for them, for their families, and the society they live in. While people with resources will still be able to obtain safe abortions, the new restrictions will disproportionately hurt poor women, women of color, and women from restrictive communities—the people who most need the courts’ protection. The Supreme Court and carefully coordinated, mostly cynical, political operators have made America hostage to a religious ideology most of us do not share.

But the harm inflicted if the Dobbs decision becomes law is even worse. The principle of stare decisis (a Latin phrase meaning “to stand by things decided”) is crucial to the rule of law and the prestige and effectiveness of the Court. I don’t take much stock in stare decisis by itself because the greatest cases in history overruled evil precedents that came before: think Brown v. Board of Education (overruling “separate but equal” in education) and, in the criminal field, Crawford v. Washington (overruling Ohio v. Roberts, which allowed even testimonial hearsay to be offered against defendants if grounded in a firmly-rooted exception and deemed reliable). But the Supreme Court has almost always respected stare decisis where individual rights are concerned. Even the increasingly conservative court of recent years has reversed precedent only in order to protect people from government overreach. Dobbs will be the first time in memory that the Court has reversed one of its prior decisions to narrow or curtail the rights enjoyed by Americans. That’s a tragic outcome that undermines the historic role of the Supreme Court and the federal courts in general—the courts in which our firm practices law day in and day out—as protectors of human liberty, dignity, and the rule of law.

The bleeding cherry on top of this horrible sundae of bad decision-making is the way in which it was announced. Chief Justice Roberts—a rock-ribbed conservative from upstate New York who now presents as moderate because he won’t go along with the worst religiously-informed anti-democratic excesses of the new majority—has ordered an investigation into how the opinion got out. As happens so frequently in other branches of government (but not in the federal courts), an insider must have leaked it for a purpose, which was either to dampen the news when the actual decision is announced in June or to test public opinion before making the decision final. Each supreme court justice has four law clerks (i.e. brilliant recent law school graduates who research and write their decisions) and a small clerical staff. The leaker must have been one of those or one of the justices and will likely be caught as in an Agatha Christie novel where the pool of potential suspects is small. I hope the leaker was a clerk for one of the conservative justices who (like their patron, Donald Trump) seem undeterred by basic rules of civility. But it may very well have been a well-intended but misguided liberal clerk thinking that release now might reduce the impact of the final decision or derail it altogether. Either way, the integrity of the institution is undermined, potentially answering Justice Sotomayor’s question posed at the Dobbs oral argument: “will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

At the end, it seems certain that Roe is doomed and the role of the Court as a protector of the realm of liberty is in serious trouble. The end of Roe may have a silver lining. If by bringing the debate to state legislatures a new generation of active feminist voters and lawmakers is born before they are outnumbered by unwanted children and death-by-back-alley abortions, Roe’s sacrifice will not have been for nothing. We can only hope that the reaction against these awful developments, like the men and women fighting for democracy in Ukraine, is stronger and wiser and more democratic and freer than the forces of evil that aligned to bring us to this point.