I know that it’s very important to the ongoing mythical status of “the myth that binds us” (which is what I long ago dubbed the U.S. Constitution) to accept that the Supreme Court’s job is not to make laws, but to interpret them, and to interpret them humbly and impartially.
I don’t believe this myth, and you probably don’t either. But accepting the myth that binds us has worked pretty well for two and a half centuries, and I hope it will work a bit longer. Still, the Supreme Court’s most recent ruling, a virtual party line vote allowing a Texas anti-abortion law to proceed, is the kind of obvious results-oriented claptrap that puts maximum negative pressure on the myth, as it continues to try to bind us.
The court has, of course, become highly partisanized and politicized over recent decades. The current partisan majority has been assembled to all but assure certain interpretations for which the American right wing has been agitating for years. Some of the motive for that project has been to return to the pre-Roe v. Wade status quo so that states can outlaw abortion.
That project had a big breakthrough this week, with its 5-4 ruling that seems to augur the end of the long-running constitutional compromise on abortion. I assume you hardly need me to bring you the news that the court declined to halt a Texas law that imposed what some are calling a near-total ban on abortion, at least in Texas, with other states poised to follow.
But for a bare-knuckled assault on what the court just did, you can hardly do better than this cri de cœur from Esquire columnist Charles Pierce, headlined “Expand the Supreme Court; Do It Tomorrow.”
One’s view of this ruling almost surely depends on one’s underlying feelings about the limited right to choose an abortion during at least the first trimester of a pregnancy that has existed since the high Court’s original Roe v. Wade ruling of 1973.
Roe was itself a strange ruling, but one to which we’ve become accustomed, breaking a nine-month pregnancy into three three-month trimesters with a woman’s option to abort her pregnancy moved from her choice to something the state could outlaw. (Of course, you know that.)
We’ve been living under the strange Roe trimester scheme for almost 50 years, and it’s survived many tests. This new ruling might be, probably is, the biggest blow since 1973 to the Roe regime.
Personally, I’ve long since accepted that the three-trimester scheme was made up (there’s nothing in the Constitution about abortions or about trimesters). But it has held up now for 48 years.
This latest ruling would allow Texas, and presumably other states that chose to follow the Texan example, to ban abortions six weeks into a pregnancy, a stage at which many women don’t even know that they are pregnant. It would be a major upheaval in the status quo, the biggest in decades.
It will, and already has, led to louder demands from the left that the size of the Supreme Court be increased so President Joe Biden could add some new justices who would undo this ruling or otherwise move abortions back to the status quo ante. (That, of course, is what the Pierce column headline about “expand the court” was about.
It’s going to be a mess and a hullabaloo.
Personally, I’m OK with increasing the size of the court, even though it will be a colossal blow to the myth that binds us. But the idea of doing so to bring about a particular result is dangerous and could lead to precisely nobody-knows-where. I’m also in favor of fixed terms for Supreme Court justices.
I can’t claim to truly believe that the Constitution, which mentions abortion exactly zero times, was meant to imply a three-trimester abortion regulation plan. Nobody can really think so. But, made-up law or not, the Roe compromise has been the law of the land for almost half a century. If this ruling stands, as I assume it will until something else happens, we are headed to even-more-open warfare on abortion that will rattle not only future Supreme Court politics but all our politics for the foreseeable future.