It has been nearly four weeks since the leak of a draft opinion in the Supreme Court’s Dobbs abortion case.
In that time, the Court’s progressive justices have not said a word publicly to condemn this profound betrayal of trust that undermines the Court’s appellate process, nor have they spoken out against the illegal demonstrations at the homes of their fellow justices.
The only public commentary from Court progressives has come from Judge Ketanji Brown Jackson, who has been confirmed to succeed Justice Stephen Breyer when the Court’s term ends in a few weeks. She declined to condemn the leak and the illegal demonstrations.
It is difficult to see how the Supreme Court endures as a judicial institution if its own members do not defend it as such. No one would expect them to agree with a ruling along the lines of the leaked draft opinion, written by Justice Samuel Alito, that would overrule Roe and Casey. But one would think that they would rally to the defense of the Court itself — i.e., to defend the proposition that justices must be able to decide cases consistent with their good-faith application of the law, not based on the passions and intimidation tactics of the mob.
If Supreme Court justices do not defend the rule of law, what is the point? If it is to be expected that, in order to influence their rulings, justices will be subjected to political pressure, including intrusions on their personal residences and the frightening of their families, as well as corrupt obstruction of the Court’s capacity to convene, then how is the Court in any real sense a judicial tribunal?
A body that makes decisions based on political pressure rather than objective legal principles is a legislature, not a court. We need the judiciary as a check on the political process. If it is part of the political process, that would be worse than pointless; it would be politics masquerading as justice.
If the justices won’t defend their institution, that is shameful.