Does reversal of abortion rights undermine the Supreme Court’s legitimacy? Local experts explain

The U.S. Supreme Court’s controversial decision to walk back nearly 50 years of abortion rights Friday undermines its own perceived legitimacy, says Cornell Clayton, distinguished professor of government and director of the Thomas S. Foley Institute for Public Policy and Public Service at Washington State University.

“It makes the court appear to be — some would say, in fact, is — simply another body of politicians,” Clayton said. “There’s no such thing as an apolitical court. The difference, though, is the court is being perceived more and more as a partisan institution.”

While the court has been known to reverse previous decisions on occasion — for example, when Plessy v. Ferguson was overturned by Brown v. Board of Education in 1954 — Clayton says what’s most troubling is when the court rapidly changes its interpretation of constitutional principles.

The court has become much more conservative in the past five years with the addition of three new justices appointed by former President Donald Trump.

Most recently, in 2020, Amy Coney Barrett replaced Ruth Bader Ginsburg, the most liberal justice at the time. Brett Kavanaugh, appointed in 2018, and Neil Gorsuch, appointed in 2017, replaced other conservative justices.

“That really swung the direction of the court in a strongly conservative way,” Clayton said.

He says the conservatives on the court use a jurisprudential approach called originalism, which theorizes the text of the constitution should be understood as the framers originally intended.

Alternatively, the living Constitution approach, which the courts have used predominantly for more than a century, holds that the text is a starting point for a society that changes over time.

“As our understandings of equality, for instance, have changed dramatically in the last 250 years, so should our interpretation of the Equal Protection Clause,” Clayton said. “The framers never envisioned the Equal Protection Clause would encompass women. But today, because our understanding of equality is very different, we think it ought to.”

Since the 1930s, courts have interpreted the Due Process Clause found in both the Fifth and 14th Amendments to have substantive protections.

Not only do the clauses protect against unfair governmental procedures, but they also protect against what the court has defined as fundamental rights, which may or may not be explicitly found in the text of the Constitution.

Shaakirrah Sanders, a professor and constitutional law expert at the University of Idaho’s College of Law, says while the first eight amendments are laid out by the framers, they’re not very specific.

“We’ve needed courts, and particularly the U.S. Supreme Court, to tell us what these amendments mean,” Sanders said. “Just because it’s not listed, doesn’t mean the right doesn’t exist. The court hasn’t established there is some hierarchy where the rights that are mentioned are more important than the rights that are not mentioned.”

In Justice Samuel Alito’s majority opinion overturning Roe v. Wade, he begins by noting abortion “presents a profound moral issue on which Americans hold sharply conflicting views” and that “the Constitution makes no mention” of the procedure.

He goes on to argue abortion is not one of the fundamental rights protected by the Due Process clauses and such rights must be “deeply rooted in our Nation’s history.”

“Obviously, the word abortion is found nowhere in the text of the Constitution and the framers never would have envisioned it needing to have that kind of protection,” Clayton said. “The whole point of the Constitution was to limit the powers of government so it couldn’t reach into the sphere of private behavior that we consider to be of fundamental importance and fundamental freedom.”

Clayton, whose research on constitutional law and judicial politics has been featured in The New York Times, says just because certain rights are expressly mentioned in the Constitution doesn’t mean other rights aren’t also protected.

“Judges, both liberal and conservative, have agreed over the years that fundamental liberties are protected by the Constitution,” Clayton said. “What the court did (Friday) is it didn’t overturn substantive due process, it simply said the right to an abortion is not a fundamental liberty.”

But if constitutional protections are changed every time there’s an election or personnel change on the court, after the public has built expectations around these protections, trust in the judicial process begins to break down.

Given the decision handed down Friday, the court’s view of precedent may be evolving. The justices have never overturned a previous case extending a constitutional right.

“That’s when the court begins to appear like a partisan institution rather than an institution built upon the idea of rule-of-law, which is about predictability,” Clayton said. “Rule-of-law means there should be stability in our fundamental social relationships and that’s what the court puts in jeopardy by decisions like this.”

The court’s three liberals, Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan, filed a joint dissent calling the decision to overturn Roe v. Wade half a century later a breach of the core rule-of-law principle.

“In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage,” the joint dissent said. “And finally, it undermines the court’s legitimacy.”

Instead of interpreting the principles found in the text of the Constitution, Clayton says the court is increasingly looking to the ideology of particular political parties to inform its decisions.

Meaning, if the Republicans are against abortion rights, they’ll appoint justices who’ll determine there’s no protection for abortion in the Constitution and vice versa for the Democrats. Clayton said the decision is “not good for the court,” which relies upon upholding precedent.

“The Republican party is becoming increasingly a minority party that represents a smaller and smaller proportion of Americans,” he said. “And ultimately, that will catch up with it.”

Clayton expects liberals across the country to call for some kind of institutional retribution, either by expanding the number of justices on the court or moving toward term limits for justices. Both can be done through congressional statute.

Sanders says if citizens reject the court’s reversal of Roe v. Wade in the form of voting patterns and advocacy, the country could see other rights — including contraception and same-sex marriage — hold. The right to access to abortion over the years has had a disparate impact on women of color, she added.

She also believes it’s unclear how effective a congressional protection of the right to an abortion would be. However, before this case, individual states have codified the right to terminate a pregnancy.

“We see these types of tensions in other areas, particularly surrounding marijuana legislation and regulation, prostitution and gambling,” Sanders said. “It’s going to be very unclear what will happen if a state chooses to target abortion and not something like gambling or the purchase and sale of marijuana.”

Having spent the last 11 years teaching future litigators, Sanders says she feels extremely confident in the ability of Idaho attorneys to confront these issues, despite the challenges.

“For me, if there is a light at the end of the tunnel, it will be watching students who I have had the pleasure of educating make a huge impact in this area,” she said.

Palermo can be reached at apalermo@dnews.com or on Twitter @apalermotweets.