A majority of the Supreme Court is acting more like a political body than a judicial one. Its treatment of Texas’ abortion law and its looming decision to overturn Roe v. Wade, which will for the first time overturn a case that provides a constitutional right, is merely part of the court’s lurch toward political activism.
A majority of the Supreme Court is acting more like a political body than a judicial one.
On Thursday, the court allowed the U.S. Court of Appeals for the 5th Circuit to flout its December ruling that the federal case brought by abortion providers in Texas could continue against the medical licensing professionals. Instead, the Supreme Court blessed yet another delay tactic by Texas, which argued that its own Supreme Court should hear the case first. Specifically, the U.S. Supreme Court just denied the Texas abortion providers’ petition to force the 5th Circuit to return the case to the district court. This means the abortion providers’ challenge will not proceed in federal trial court for now but will first go to the Texas Supreme Court.
It might seem strange that the conservative majority of the court is allowing the 5th Circuit to view its opinions as mere suggestions, not mandates. But it makes sense when we take a step back and realize this is about the court allowing Texas to delay challenges to its abortion law until the court erases abortion rights from the Constitution and the challenge to Texas’ law becomes moot. Justice Sonia Sotomayor summarized the consequence of the court’s decision in one sentence: “This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies.”
Our system of government depends on each branch performing a different role. The legislative branch makes laws. The executive branch enforces them. The judicial branch decides if those laws are valid. There is plenty of overlap and messiness when it comes to the separation of powers, but that is the basic three-pillared structure of our government.
How do we know that judges are not just politicians in robes? What distinguishes a judicial body from a political one? Stare decisis, “to stand by things decided,” a doctrine that tells judges to respect case precedent, is one part of the answer to that question.
Judges are supposed to adhere to past legal decisions, even if their predecessors or colleagues made them. Of course, there are rare instances in which courts should reverse course and overturn a decision. But judges owe us a good reason for pulling the rug out from under us after we have relied on a decision. The purpose of the doctrine of stare decisis is to make sure that the development of the law is predictable and reliable. And, perhaps even more importantly, to make us respect what judges do as not merely being about their personal philosophies or political goals, but about an even-handed application and development of the law.
The majority of the current Supreme Court seems not particularly concerned with as preserving the public’s respect for what judges do.
The majority of the current Supreme Court seems not particularly concerned with minor inconveniences such as preserving the public’s respect for what judges do, at least not when it stands in the way of its near-inevitable decision to erase the right to obtain an abortion from the Constitution. Exhibit A, the long and winding road littered with challenges to Texas’ abortion ban.
The time for polite euphemisms is over. Let’s be blunt. Texas passed an unconstitutional ban on abortions. And the Supreme Court, which, let’s say it one more time, is charged with striking down laws that violate the Constitution, is aiding and abetting Texas’ behavior. The Supreme Court appears to be comfortable allowing states to flout its precedents (the cases ruling that there is a constitutionally protected right to obtain an abortion) because it is about to overturn those precedents anyway.
To go back to the beginning: Texas passed a ban on abortions after six weeks of pregnancy and it outsourced enforcement of that law to private individuals. Abortion providers challenged the law, correctly pointing out that it flies in the face of the Supreme Court’s decision in Roe v. Wade and Planned Parenthood v. Casey. They ultimately filed an emergency appeal with the Supreme Court, asking the court to do what it should do: prevent an unconstitutional law from going into effect. Instead, the court functionally overturned Roe and Casey with silence. It did nothing for days, allowing the law to be in effect. Then when it finally did speak, it essentially threw up its hands and said the enforcement mechanism was so complicated that it would just let the illegal law remain in effect. The court would wait, it said in not so many words, for a case that specifically addressed who could be sued in a suit to stop enforcement of the Texas law. So challengers to Texas’ law teed up a case that directly addressed that very question: Who, if anyone, can be sued in a federal court in a case challenging Texas’ law? In response to that suit, the court did two things that signaled its callous indifference to abortion rights. First, it said only one group, the Texas medical licensing officials, were the proper defendants for such suits, which narrowed the ability of challengers to sue in federal court to stop an unconstitutional law from remaining on the books. Second, while the court said that the challenge by abortion providers could go forward against the medical licensing professionals, it failed to stay the law while that case continued. Meaning the court once again allowed the unconstitutional law to stay in effect. The court deciding Thursday that the 5th Circuit could ignore its December decision and divert the case to the Texas Supreme Court is the latest twist in this saga. Where does this leave us? A majority of the court has now acted as accomplices in Texas’ illegal attempt to ban abortions. Of course, based on everything the court has done and failed to do with respect to Texas’ law, it seems increasingly clear the court stands ready to eviscerate abortion rights in this country. But make no mistake. This won’t end with abortion. It was never going to end with abortion. Look for the Supreme Court to blatantly ignore or contort its past precedent in order to achieve its goals in other areas like rolling back rights for members of the LGBTQ community.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
