The side that ‘yells loudest’ is the side demanding that Roe and Casey be upheld.
The side that ‘yells loudest’ is the side demanding that Roe and Casey be upheld.
I t was surprising to see Justices Breyer, Sotomayor, and Kagan lead off their questioning at the oral argument in the Dobbs case on Wednesday with an incredibly weak and pathetic argument.
Justice Breyer began by focusing on an argument made in 1992 by the Casey troika of Justices Souter, O’Connor, and Kennedy:
They say Roe is special. What’s special about it? They say it’s rare. They call it a watershed. Why? Because the country is divided? Because feelings run high? And yet the country, for better or for worse, decided to resolve their differences by this Court laying down a constitutional principle, in this case, women’s choice. That’s what makes it rare.
Breyer never took the time to explain how “the country” had “decided” to have seven members of the Supreme Court “resolve their differences” by inventing a nationwide right to abortion-on-demand in 1973. It was a rather arrogant defense of a rather arrogant sentiment expressed in Casey.
In effect, this set the stage for Justice Breyer’s main argument, which boiled down to this: If the Supreme Court now overturns Roe and Casey, the decision would be viewed by the American people as bowing to political pressure and would thus severely damage the legitimacy of the Supreme Court.
“It is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure,” Breyer said, citing Casey. “To overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the Court’s legitimacy beyond any serious question.”
Justice Sotomayor echoed Breyer: “Will this institution survive the stench that this [decision to overturn Roe] creates in the public perception that the Constitution and its reading are just political acts?”
Even Justice Kagan, who was surprisingly quiet, led off her questioning by echoing Breyer, saying that stare decisis was “especially” important “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 loudest.”
But the argument made by Breyer, Sotomayor, and Kagan was incredibly weak because it is obviously true that in any contentious case in which the Supreme Court is asked to overturn precedent, there is political pressure to uphold the precedent and political pressure to overturn the precedent.
Even if you accept the premise of the Breyer-Sotomayor-Kagan argument, it makes no sense in the Dobbs case because the side that “yells loudest” — the side that’s exerting the most political pressure — is the side demanding that Roe and Casey be upheld.
Recall that in March 2020, Senate Democratic leader Chuck Schumer stood on the steps of the Supreme Court and threatened Justice Kavanaugh and Justice Gorsuch by name on the day of oral arguments in June Medical Services v. Russo, a case challenging a Louisiana law establishing health and safety regulations at abortion clinics.
“I want to tell you, Gorsuch! I want to tell you, Kavanaugh! You have released the whirlwind, and you will pay the price!” Schumer shouted. “You won’t know what hit you if you go forward with these awful decisions!”
Chief Justice Roberts took the unusual step of rebuking Schumer. But Schumer may have gotten what he wanted — not from Gorsuch or Kavanaugh but from the chief justice himself, who later issued his most political and most capricious ruling to strike down the Louisiana law that had been before the Court. Roberts had voted in 2016 to let identical laws in Texas stand, but in 2020 he said that stare decisis compelled him to adhere to the erroneous 2016 ruling. In 2007, Roberts voted to uphold the federal partial-birth abortion ban just seven years after the Supreme Court had said that Nebraska’s partial-birth abortion ban was unconstitutional.
And what does one say about Democratic threats to increase the number of justices from nine to 13 in order to give Democrats a 7–6 majority? Could there be a greater source of political pressure applied to the Supreme Court as an institution than that?
“The Court needs to know that the people are watching,” Democratic congressman Hank Johnson of Georgia, a co-sponsor of the Court-packing bill, said at a press conference announcing the bill’s introduction in April. House Judiciary Committee chairman Jerrold Nadler, lead sponsor of the bill, said that Speaker Pelosi and other Democrats would support Court-packing “as the Court comes down with decisions destructive to a woman’s right to choose.”
“The Left wants a sword dangling over the justices when they weigh the facts in every case,” Senate GOP leader Mitch McConnell said at the time. “The threats are the point. The hostage-taking is the point.”
As I’ve explained elsewhere, while there are many reasons why Court-packing is an empty threat, it is obviously meant to intimidate the justices. It is a far greater source of political pressure than busloads of teenagers who attend the annual March for Life.
Court-packing isn’t the only type of political pressure Democrats are applying to the Supreme Court. Just this summer, Senate Democrats and the New York Times tried to intimidate Justice Kavanaugh with a bogus story suggesting that the FBI hadn’t properly investigated Brett Kavanaugh during the FBI’s supplemental background check during his confirmation hearings. Senate Democrats continue to try to create a cloud of suspicion where none exists.
And isn’t it obviously true that the aforementioned comments made at the Dobbs oral argument by Justices Breyer, Sotomayor, and Kagan were actually meant to increase the political pressure on their fellow Supreme Court justices to uphold Roe? If the other six justices were chiefly concerned about standing up to political pressure, then they would certainly overturn Roe and Casey. Such a concern about appearances, of course, is a terrible way for the Supreme Court to make decisions about what the U.S. Constitution says. If Supreme Court justices were chiefly concerned about the Constitution and the merits of the case, as they should be, then they . . . would certainly overturn Roe and Casey.