The Missed Opportunities Haunting The Supreme Court's Abortion Move

There were a lot of points where Democrats could've tried to fix the Court instead of leaning into 'winning' it. Now that strategy has burned us all.

Up until it actually happened, I didn’t think the Supreme Court would shadow docket obliterate nearly a half-century of constitutional precedent. Dismantling of Roe v. Wade was only a few months away. Why complicate the legal landscape by blessing the Texas law without comment, especially when its provisions are so downright wacky. For a Roberts Court that spent a decade stripping standing from actually aggrieved parties, tacitly authorizing a witch trial statute to allow citizens with zero connection to start suing everyone they think might have once hugged a woman who got an abortion seemed an impossibility.

But they did it anyway because some men just want to watch the world burn. And push women into that inferno along the way.

Buckle up, because we’re about to go down the rabbit hole of increasing demands for immediate Supreme Court expansion, a proposal that is both a non-starter because of the Senate and a long-term destabilizing move that probably ends in even more tears. The problem is… what else is there right now?

Pretty much. There were so many off-ramps on the Highway to Gilead. After the Clarence Thomas hearings, Democrats could have reoriented around fundamental reform to prevent a repeat of the situation where their only president in 24 years put zero nominees on the Court while the Republicans added 10. Or after Bush v. Gore, as pointed out in the above Tweet, when the concept of an apolitical Supreme Court exploded in epic fashion. Or my personal favorite, that time when Ted Cruz was whipping up GOP support for term limits. Cruz wanted retention elections — which are batshit stupid and would undermine the whole point of the Supreme Court — but at least it was an opening for bipartisan reform. In 2015, there was a chance to work out some kind of deal. But nothing happened because when confronted with this option, the liberal attitude could be summed up as “but we’re going to win.”

John Rawls would like a word about the veil of ignorance.

That preternatural confidence in Hillary Clinton’s election is the one that gets me today because in a small way I watched a moment that encapsulated the Democrats blow by that fork in the road. Back in July 2015, I attended a panel discussion about the future of liberal activism and the judiciary and had an opportunity to ask a question about whether activists should take advantage of Cruz’s entreaties to usher in some long-term court reform.

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Still, for a panel on “change” there weren’t as many satisfying strategies as I’d have expected. I tried to bring the panel back on track by jumpstarting it with — what I thought — was a softball question about whether progressives should consider joining conservatives like Sen. Ted Cruz in seeking term limits for the high court to force the body to inject new blood (and perhaps to open it up to older jurists who would never get appointed assuming life tenure). Linda Greenhouse has proposed such an amendment, and other traditional liberals have talked about it. Professor Tribe has outlined a legislative solution. I figured this might jumpstart the conversation one way or the other.

It didn’t. [Alliance for Justice’s Nan] Aron specifically said there were more important struggles than term limits — which is probably true — but declined to suggest which struggle was going to actually change the direction of the Roberts Court.

This was a question posed to one of the most influential voices in the Beltway battle over the judiciary and it didn’t even seem to register as an issue. While there is an embryonic push for Supreme Court term limits right now, at this point the momentum is going to swing toward Court expansion, which almost certainly backfires long-term. But with people losing their rights across multiple constitutional hotspots right now from labor to voting to abortion, it’s hard to get people amped up for the cautious and sound solution that, unfortunately, will take a few elections to produce results.

And this all goes back to the fault of a certain class of liberal that refused to see this coming. Refused to see it coming… as recently as July.

The Aaron Sorkinization of the Supreme Court is the heart of the constitutional disease, and expansion — by its very nature — doesn’t treat that. Ultimately, “getting new judges” accepts the premise that a life-tenured legal aristocracy holding policy-making power over the country is a net “good” that’s merely temporarily infected. It’s not. For real originalist-heads out there, the current manifestation of the Supreme Court represents everything that would’ve made the Framers spit up their tea.

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The GOP spent the last 50 years organizing around the Court for a reason. Well, two reasons. One is that it lacks a direct link to national electoral success, a boon for a party that can no longer win a popular election to save whatever fragment remains of its soul. But it’s also because the Court structurally benefits GOP aims. Its constitutional powers are negative in nature — stopping the other branches or the states from acting. This makes the institution an inherent defender of the status quo — or at least the powers-that-be — at all times. Back in 2016, now-Representative Jamie Raskin noted:

I think that it’s important for progressives to fall out of love with the Supreme Court. You know, it’s still got a halo that still hovers around it dimly from Brown v. Board of Education and the white primary cases, and maybe Miranda v. Arizona, but the fact is for the vast majority of American history, the Supreme Court has been a profoundly reactionary institution.

The thing is the Court is meant to be reactionary. It’s “apolitical” to the extent that it’s one more institutional check on the passions of a single election, designed to bring a hyped up populace back to the “rule of law.” Which is why Cruz’s retention elections idea didn’t make a lick of sense. Though even if the Court is intended to have an apolitical edge, interpreting THE LAWTM divorced from societal trends makes no sense. Elections suggest that more people think the words “equal protection” mean what I believe, and not what Sam Alito believes. That’s the crux of interpretation.

And despite the GOP’s laser-focused effort to conquer the judiciary being obvious since at least the Abe Fortas nomination for Chief, the Democrats have continued pawning off important policy goals on the judiciary, embracing that “apolitical to a fault” framing of the Court that allowed nakedly partisan conservatives to wear robes like sheep’s clothing in a systematic takeover.

Just a complete abdication of responsibility in the face of an obvious effort to hack the constitutional order all in the name of defending some heroic ideal of — to borrow a term others use for the justices — Platonic philosopher kings.

Now, with these off-ramp moments in the rearview mirror, I fear that the “elite lawyer brain” that infects the Democrats is just going to double down on the GOP’s vision of the Court… but with MOAR LIBERALS. It’s the “Max Power Way” solution: a life-tenured policy-making nobility to dead hand rule for generations… but faster and harder!

And the worst part is that, at this juncture, it’s difficult to imagine any other option. But whatever imperfect proposal comes next, do it with one eye on all the errors and misjudgments it took to get here.

Earlier: The Supreme Court Still Blows But We Have No Idea How To Fix It
Congress Introduces First Supreme Court Term Limits Bill!
The Liberal Argument Against The Supreme Court


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.