And Justices For All

After oral arguments in Dobbs v Jackson Women's Health Organization, it's been considered pretty much a given that the judicial precedent set in Roe v Wade will be overturned. Whether this is a good or a bad thing seems to largely depend on what one thinks about abortion rights. Which is fair, given that this case is about the state of Mississippi wanting to either substantially limit or do away with the practice within its territory.

But, of course, the Supreme Court of the United States is capable, within limits, of enacting much broader changes than this in the legal framework of the nation. And given that, maybe being clear-eyed about the role of the court in the nations government is in order.

While many people, Supreme Court Justices included, would argue that the role of the court is to be a non-political arbiter of whether specific laws and regulations fit within the limits that the Constitution and other laws set for them, the idea of a non-political Court doesn't really make much sense, given that the people who select the members of the court and ultimately empanel them are themselves politicians. The fight over whether President Obama should have been allowed to fill the seat left vacant by the death of Antonin Scalia and, subsequently, whether President Trump should have been allowed to fill Ruth Bader Ginsberg's seat after her death, and indeed, the whole fact that people talk about filling vacancies on the Supreme Court when speaking of the importance of both presidential and congressional elections should have made clear that many people have, for some time, believed that the role of a Supreme Court Justice is to interpret the Constitution and the laws of the United States in accordance with the wishes of those who place them on the bench. So why not own up to that?

There is no such thing as a non-political branch in an inherently political institution. And pretending otherwise doesn't serve anything, other than, perhaps, people's desire to see their wants and needs as being in line with some higher standard than their own interests.

It's easy to see Supreme Court precedents going the way of Executive orders; a particular incarnation of the Court rules one way, and as soon as the Court's partisan makeup swings back the other way, activists and politicians create pretexts to push lawsuits to the Court in order to have that ruling overturned. Until the Court swings back the other way and the cycle continues. While a number of commentators that I've heard recently propose that such goings-on would lead to the Supreme Court becoming illegitimate in the eyes of the public, I think that such presumes that "the public" is somehow completely incapable of understanding what time it is.

As long as there is an understanding that part of the role of the United States government, of whatever branch, is to mediate between mutually hostile groups with an eye towards determining which of them will have their interests gutted in favor of the other(s), the institutions that make up that government are going to be seen as legitimate only to the degree that they appear to side with any individual's chosen group. There is no reason for the Supreme Court to be above this dynamic. So it's not really where the focus should be.