Why the Roe case is much bigger than the case itself. (ken grotewiel)

    The Supreme Court is risking the loss of its legitimacy.

           Photo by Markus Spiske on Unsplash

    If the public does not view the Supreme Court as an unbiased “decider” in cases it accepts, and it appears to be partisan, then every decision it makes after that becomes suspect. This is the danger the Supreme Court takes as it mulls over the Constitutional legitimacy of Roe v. Wade.

    The Supreme Court is in a predicament

    Maybe given the current political climate, and whatever their good intentions, they will be looked upon as partisan if they limit access to abortion. If they instead rule to carve out some limited access to abortion but don’t go as far as the Mississippi laws, they will be viewed as traitors by those who overwhelmingly want abortion eliminated as a choice. It’s hard for me not to have some sympathy for their predicament.

    Yet, the Supreme Court has always been a political institution. Not just a blatantly partisan one. For 200 years they have preserved a veneer of impartiality. This helps people cut the Court some slack when it makes any decision, big or small. It’s one big piece of our democracy that helps keep it functioning by giving all people a belief that their views will be considered, even if they lose on a particular issue. It’s one of the many “safety valves” provided by the Founding Fathers to give people a chance to be heard and recognized. And not take all their toys and go home ― or get out their guns.

    What’s an activist judge anyway?

    National columnist George Will shared his opinions this week on the Roe abortion case before the Court. He says that “Roe epitomizes results-oriented judicial fiats untethered from the Constitution’s text, structure and history”. This is a familiar refrain from conservatives about an ‘activist’ Supreme Court that favors views which they oppose.

    The Supreme Court a few years ago declared with the Citizens United case that Corporations essentially were people and had a right to collect and distribute money pretty much anonymously to candidates and parties. Did Corporations as we know them even exist in 1790? No, but it did not stop an activist courts from “results-oriented judicial fiats” as George Will described in the Roe decision.

    Give me a break. Conservatives did not object to this court fiat in the Citizens United case because they agreed with it. An activist court is in the eye of the beholder.

    The Supreme Court is at a crossroads

    In fairness to the Court, the decision was based on which rights prevail over previous decisions and the case before the Court. They simply made the decision with a rationale that was quite different from the sound arguments made by opponents in the case. Most big cases are toss ups, and personal views essentially make the difference on how cases are decided.

    And yes, I can accept that fact. What I can’t accept is the Court acting in a way that undermines our democracy. If they decide to throw out the Roe decision and make the Mississippi law constitutional, I will feel like I don’t matter to an entity that makes decisions in total secrecy.

    There will be a firestorm, and this is not unusual in our democracy. What will be different is that the firestorm will be aimed at the Supreme Court because it will be viewed as an arm of the Republican Party and a vocal minority. Its legitimacy will be questioned and weakened. And that is a tragedy for our democracy.

    This lack of legitimacy will reverberate well into the future regardless of the makeup of the Court. And that is truly a shame.


    Ken Grotewiel writes for the publication Our Sacred Democracy on Medium and is a Founding Member of the None of the Above Society.

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