Sunday, November 27, 2022
Nov. 27, 2022

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Estrich: Supreme Court plays with fire

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The Supreme Court, it turns out, is even less popular than the inflation-battered Joe Biden. By a 60-40 margin according to the latest Marquette University Law School poll, Americans disapprove of the Supreme Court. While the Court isn’t responsible for interest rates, it is responsible for overruling a decision that was supported by the overwhelming majority of Americans, and especially American women, which is the reason for the dive in approval ratings. That’s good news for the Democratic Party, but not so good for the rule of law.

You can’t blame people for being disillusioned. It’s not that the justices who voted against Roe changed their minds; that might be understandable at least. No, they always opposed giving women a constitutional right to control their bodies. They just lied about what they would do about it, claiming — when it was convenient for confirmation — all kinds of respect for precedent, for stare decisis or decided law, and then, once confirmed for life, doing just the opposite.

So, after years of warning that we were one vote away, and few on the pro-choice side believing it, this year is different. This year, it was really one vote and the vote was cast, and the court emerged as a key factor in this year’s midterm election, with a target on its collective back that conservatives put there. Which is exactly the wrong place for the Supreme Court to be.

In the short run, there seems to be no question but that the Dobbs decision is helping Democrats politically, especially against some of the handpicked Trump extremists Republicans are running. Prior to Dobbs, polls collected by Nate Silver and FiveThirtyEight showed the generic Republican two points ahead of the generic Democrat, which is what you would expect when the party in power is coping with inflation. But in the wake of Dobbs, the generic Democrat is actually polling ahead of the Republican.

Moreover, where abortion has been on the ballot, as it was in Kansas, there has been a surge in registration and turnout by women voters voting the abortion issue. That pattern is likely to repeat itself in races where abortion is one of the key issues dividing the candidates. No one takes anything for granted any more.

And this year, on the first Monday in October, when the Supreme Court opens its new term, the question that will be on everyone’s mind is: “What’s next?” If stare decisis and respect for precedent counted for nothing when it comes to Roe v. Wade, what about marriage equality? What about gender issues? What about the larger civil rights and civil liberties agenda?

It is only fair to ask these questions, and to speculate about what else the ideologues on the court might be up to. And to view them that way, not as the umpires they like to invoke when they’re pretending for confirmation purposes that all they do is call balls and strikes.

But viewing the justices in that light, viewing the court as just another political institution staffed by the usual hacks, deprives the court of the grandeur and dignity that an institution without an army to enforce its decisions needs to be respected. The rule of law holds force not because of the might of the U.S. marshals, but because of the power of our belief, both in the law and in the people enforcing it. That is what the court’s new conservative majority is trifling with. They are playing with fire.

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