What high court would gain if it reverses Roe v. Wade
President Joe Biden’s commission on reforming the Supreme Court did not make any recommendations in its final report. Biden did not ask it to. It did, however, show what is on the minds of legal experts of varying political stripes.
What they are worrying about is the court’s “legitimacy.” Some version of that word appears more than 70 times in the report. Among the questions it takes up: Would packing the court reduce its legitimacy? Would term limits for the justices harm it? Has partisanship already lowered it to a dangerous level?
The high court’s legitimacy is also a main subject of debate in the highest- profile case before it this term: the case about Mississippi’s ban on abortion after 15 weeks. In 1992’ s Planned Parenthood v. Casey, the Supreme Court based much of its argument for reaffirming Roe v. Wade on the theory that reversing itself “under fire” would compromise the public’s perception of its legitimacy and thereby endanger the rule of law. Justice Stephen Breyer echoed this point during the oral arguments over the Mississippi ban.
The main counter- arguments are that the justices should reach a legal judgment without trying to head off or even predict a public response, and that Roe itself has undermined the court’s legitimacy by dragging it into a partisan mire. As a longtime critic of Roe, these are the arguments I find persuasive. In the long run, both the court and U. S. politics will be better off if the grave error of 1973 is erased.
There’s something missing from the discussion of legitimacy and Roe, though, something that the commission report gets admirably clear: The term has a lot of different, and sometimes incompatible, meanings. Before we ask what decision in the Mississippi case would be best for the court’s institutional interest, we have to consider what sort of institution it is.
For much of U. S. history, the court played a role that was important but much more limited than the one it has performed during the last few decades. It set aside few laws — only two federal laws in the first seven decades under the Constitution. As Americans struggled over issues such as religious pluralism and the size of government, the court was mostly a bystander.
Over the last century, and particularly since World War II, the court has read the Constitution as giving it a much larger role in superintending the policies of the federal and state governments. As it accumulated more power, its conception of itself changed accordingly, as did everyone else’s conception of it.
The new Supreme Court declared itself “supreme in the exposition of the law of the Constitution.” It flirted with ending the death penalty in the name of “evolving standards of decency” found neither in the Constitution nor even in public- opinion polls. It ended widespread practices that had endured for decades without being considered unconstitutional.
Some of the most grandiose descriptions of its role came in Planned Parenthood v. Casey, one of the cases at issue now. Americans’ “belief in themselves” depended on their respect for the court, it claimed. It summoned “the contending sides of a national controversy to end their national division” over abortion.
Americans didn’t follow that order, of course. The sides have kept contending. But this exalted view of the Supreme Court found influential adherents. In the 1990s, Kathleen Sullivan, then a professor at Stanford Law School and later its dean, suggested that one of the few outside checks on judicial decisions — the possibility of constitutional amendments to undo their effects when desired by a supermajority of the public — should be suspect.
Overruling Roe would be a blow to this grand version of the court’s identity. It would strip away the pretension to political and moral leadership that it has built up over the years. It would amount to an admission that its attempt to impose its will on the public had failed.
Worse, it would be an admission that the attempt had deserved to fail, because Roe substituted the court’s will for the Constitution. Today’s court would be saying, in effect, that Casey was an act of desperate obstinacy.
The Supreme Court would still have the power to set aside laws. It would be taken less seriously as an oracle. Those who say that the institution would lose some of its clout are not wrong. What they don’t see is that it would be a good thing.