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Minnesota to California, Florida, Ohio, South Carolina, New York and many, many places in between.
Abortion rights activists across the country are meeting the Supreme Court’s decision to overturn Roe v. Wade with a blitz of dissent. Their potent outrage can be felt far beyond Washington, with celebrities, companies and advocacy groups helping to fuel it — both online and off.
It’s all rooted in the high court’s decision to eliminate nearly 50 years of precedent. But it’s also a powerful measure of the growing gap between the US people and their highest court.
Consider this: Most Americans disapprove of the Supreme Court’s decision to overturn Roe vs. Wade, according to a CBS News/YouGov poll conducted Friday and Saturday in the immediate wake of the ruling. And polling taken before the Supreme Court ruling showed a broad majority of Americans did not want to see the landmark 1973 abortion ruling struck down.
In a May CNN poll conducted immediately after the leak of the Supreme Court’s draft opinion on the case, Americans said, 66% to 34%, that they did not want the court to completely overturn the decision. In fact, in CNN’s polling dating back to 1989, the share of the public in favor of completely overturning Roe has never risen above 36%.
Unapologetic majority. Instrumental in Friday’s ruling were the three justices former President Donald Trump placed on the court: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Together with Justices Samuel Alito and Clarence Thomas, the conservative wing of the court penned a forceful majority opinion.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” the opinion states.
Later: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
And finally: “We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
The opinion’s sweeping tone points to a conservative court that was ready to overturn Roe v. Wade the minute it agreed last year to hear Dobbs v. Jackson Women’s Health Organization. An audacious and defiant tenor runs throughout the opinion, making it all the more difficult to square with the justices that signed on to it and how they got there.
Let’s revisit Gorsuch’s confirmation hearing in 2017. Facing questions from the Senate Judiciary Committee, Gorsuch was asked by Sen. Lindsey Graham, a South Carolina Republican, if Trump had ever asked him in an interview to overturn Roe v. Wade. After a brief pause, with all eyes on him, Gorsuch responded, “No. … I would have walked out the door.” Gorsuch said, “That’s not what judges do.”‘
Gorsuch also defended the value of precedent when asked about the controversial abortion law.
“Part of the value of precedent — and it has lots of value, it has value in and of itself, because it is our history and our history has value intrinsically. But it also has an instrumental value in this sense: It adds to the determinacy of law,” the judge said.
“Once a case is settled, that adds to the determinacy of the law,” Gorsuch added. “What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”
Then there’s Kavanaugh, who returned time and time again to the importance of precedent and the Supreme Court’s “precedent on precedent” during his 2018 confirmation battle.
“One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992,” Kavanaugh said in his confirmation hearing, adding that the Casey decision analyzed the “stare decisis factors” when explaining why the precedent was not overturned.
“It is not as if it is just a run-of-the-mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors and decided to reaffirm it,” Kavanaugh said. “That makes Casey a precedent on precedent.”
Barrett was less definitive in her 2020 confirmation hearings but still assured lawmakers she would set aside her personal opposition to abortion in order to follow the law.
“My policy views, my moral convictions, my religious beliefs do not bear on how I decide cases, nor should they; it would be in conflict with my judicial oath,” she said.
The path not traveled. The majority’s opinion reads even more extreme when you consider Chief Justice John Roberts’ push for a more measured approach. Roberts did not join the majority, writing in a concurring opinion that he would not have overturned Roe but instead would have only upheld Mississippi’s law banning abortions after 15 weeks.
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case,” he wrote.
And later: “I would decide the question we granted review to answer — whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case.”
Put simply, Roberts maintained that this didn’t have to be an all-or-nothing case. He had proposed a limited resolution at oral arguments last December, but apparently never had any real momentum against the court’s conservative bloc.
There were no signs in the opinions released on Friday that those who joined Alito had wavered in the view that Roe was “egregiously wrong.”
Roberts sought to “leave for another day whether to reject any right to an abortion at all.” Alito dismissed that possibility, saying the “quest for a middle way would only put off the day when we would be forced to confront the question we now decide. The turmoil wrought by Roe and Casey would be prolonged. It is far better — for this Court and the country — to face up to the real issue without further delay.”
It’s not just Roe. If the Supreme Court’s abortion ruling put a spotlight on its ideological distance from the American people, its gun ruling the day before had previewed it.
The high court struck down a New York gun law enacted more than a century ago that places restrictions on carrying a concealed handgun outside the home — an opinion marking the widest expansion of gun rights in a decade.
“Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution,” Thomas wrote for the court’s 6-3 majority.
Up for grabs are not just public-carry laws like the New York rule before the court. Virtually any other type of gun regulation, including age-based regulations, restrictions on certain types of firearms and limits on high-capacity magazines, will now be viewed by courts in a harsher light.
Yet a recent Gallup survey found a marked increase in support for stricter gun laws following last month’s mass shootings in Uvalde, Texas, and Buffalo, New York.
About two-thirds of Americans (66%) say that laws covering the sale of firearms should be made more strict, up 14 points since last fall and the highest since 2018. That increase comes across party lines, with 94% of Democrats now in favor of stricter laws along with 66% of independents and 38% of Republicans.
According to Gallup, that is the highest level of support since 2001 among Democrats, and it matches or nears the high points for independents and Republicans.
A majority also say they would prefer new laws on guns in addition to stricter enforcement of current laws (55%), while 42% say they would prefer to see stricter enforcement only.
This political will for more gun safety helped fuel the first major federal legislation in decades. The package represents the most significant new federal measure to address gun violence since the expired 10-year assault weapons ban of 1994.
If considering this as you read Thomas’ opinion — wherein he argues that gun restrictions must be measured by the nation’s history, not by a state’s assertion of urgent public safety interests — leaves you startled at the gap between court and country, you’re not alone. But what, if any, remedies could help link the high court and the people it serves remains an open question.
What now? For years, Democrats in Congress have pushed for limits on Supreme Court appointments as a way to limit the vacancies that fall under any one presidency. It’s unclear if ideas like this — or similarly ambitious ones — will find new momentum in the wake of the high court’s recent rulings.
Rep. Ro Khanna is giving it a shot anyway. On Saturday, the California Democrat called on the President to endorse the idea of Supreme Court term limits.
“It is a court so isolated that it has lost all sense of reality about public opinion and how Americans live. Far from serving as a check on majoritarian rule, six of the court’s justices are serving to entrench a right-wing ideology,” Khanna said in a speech.
But remember, the Biden administration has already given Supreme Court revisions a look, and it brought little but controversy.
The commission Biden tasked with exploring changes to the court concluded in a December report that there was “profound” disagreement over whether to add more seats to the bench, and the report didn’t take a final position on term limits.
The subtext of the report was clear: No adjustments to the court are likely anytime soon. The Supreme Court we have is the one we’ll have for some time, starting with more opinions Wednesday.
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