Looking no further than the op/ ed pages of the Washington Post, there's plenty of commentary about the conduct of the Republican Supreme Court (RSCOTUS) during oral arguments in the anti- abortion case of Dobbs v Jackson Women's Health Organization. Here are a few snippets.
The Supreme Court heard arguments Wednesday in an abortion case that could mark a perilous turning point for American society. Judging by the justices’ tone, the question is not whether they will eviscerate the 1973 Roe v. Wade decision and the subsequent Planned Parenthood v. Casey ruling in 1992 but how drastically they will curtail these core precedents. The justices should have no illusions: A partial or total reversal of Roe would devastate not only the Americans who rely on the abortion rights that have been theirs for nearly 50 years, but also the court itself, undermining its legitimacy. [snip]
The other shift since Roe has been the makeup of the court, reshaped after the addition of several conservative justices due to a mixture of underhanded politics and pure happenstance. The court’s authority derives not from its ability to enforce its declarations — it lacks any such power — but from the fact that Americans respect its decisions. Those decisions must reflect something greater than mere whim or raw political power in the Senate. The court should overturn precedent only in exceptional circumstances. The justices must exercise particular care in the case of Roe, because the court previously reviewed and reaffirmed it in Casey, reinforcing its status as the law of the land. In such a circumstance, the court should reverse only decisions that have proved, with the wisdom of hindsight, to be wildly bad. That is not the case with Roe or Casey.
Justice Brett M. Kavanaugh on Wednesday cited landmark cases such as Brown v. Board of Education, which overturned previous court holdings, to argue that the court sometimes makes its most important decisions when it breaks with past rulings. The justices should take no comfort in this strained comparison. If the court substantially reverses or strikes Roe, Americans will not remember it as a moment of overdue progress but as an undue contraction of Americans’ constitutional rights that does deep and immediate harm to millions. That would indeed be a bleak day for the court.
The six Republican-appointed justices on the Supreme Court left no doubt in oral argument Wednesday that they would end the constitutional right to abortion that American women have had for nearly half a century. The court will either overturn Roe v. Wade outright or cripple the landmark ruling by eliminating the “fetal viability” standard at its core. Both would return us to a time before most people living ever knew, when state legislatures controlled women’s reproductive decisions.
Public opinion hasn’t changed. The science hasn’t fundamentally changed. No new legal theory has been promulgated. The only difference is the court now has a majority hellbent on settling scores in the culture wars. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked her colleagues. “I don’t see how it is possible.”
There’s good reason, Justice Elena Kagan said, why the Supreme Court has given great weight to precedent — and particularly to “super precedent” such as the 1973 Roe decision, affirmed by the 1992 Planned Parenthood v. Casey decision. It’s “to prevent people from thinking that this court is a political institution that will go back and forth depending on what part of the public yells the loudest.”
