Oct. 1 may have begun as any other day at the U.S. Supreme Court, but it ended with a death knell to impartiality. Befitting the most powerful, least accountable institution in Washington, the action took place behind closed doors.
At some point that day, as we learned in an order issued later in the week, four or more justices voted to hear a case that will test the legality of a Louisiana law requiring doctors who perform abortions to have admitting privileges at local hospitals. This law is nearly identical to the one from Texas that the court struck down in 2016. Yet instead of all nine justices following court precedent and telling the Bayou State, via summary judgment, to take a hike, some subset of the nine thought it prudent to make this highly charged issue the linchpin of the 2019-20 court term.
Not a high court the public can trust
Five or more votes determine the ruling at the court, but for a petition to be granted review, only four justices’ votes are needed. Like so much else hidden from view at the Supreme Court, the public never knows which four have voted for review — that is, until a case like this comes along and the votes become easily surmised.
For run-of-the-mill petitions, there is a combination of strategy and courtesy that goes into a justice’s vote to grant review. But in a petition as highly charged as the Louisiana one, a group of four justices would not risk bringing it to argument if they were not confident in the outcome.
The three dissenters in the earlier Texas abortion case remain on the court: Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Justices Neil Gorsuch and Brett Kavanaugh, whose anti-abortion views are clear, have been added to the bench since then. The “Rule of Four” has become the "Sure Thing of Five."
The notice to grant review can then be seen in the larger context of today’s Supreme Court: Major cases are almost always decided by the slimmest of margins and often feature legal reasoning based not on history and precedent but on how to achieve a particular outcome. Cases that determined the winner of a presidential election, who may obtain health care, who can vote or whom we can marry easily fall into this category.
This is not a court that an increasingly skeptical public can trust.
“We don’t go about our work in a political manner,” Chief Justice Roberts told a Manhattan audience last month. OK. Prove it. Tell us which justices among you are voting to grant review in the major cases the court is taking.
Show us that all nine justices, or maybe three conservatives and three liberals, voted to grant the travel ban case (decided 5-4), the gerrymandering case (decided 5-4) or the public unions case (decided 5-4).
If choices aren't partisan, prove it
Prove to the public that it was not the five Republican-appointed justices who voted to grant the Louisiana abortion petitions. Give us the vote tally on the same page on which the orders are noted.
Editorial Board: Court blows it on gerrymandering. What an incumbent racket.
If the Supreme Court’s work is truly done apolitically, we would see Republican-appointed justices voting for grants with Democratic-appointed justices just as often as with their Republican-appointed colleagues. Or we’d see a raft of a nine-vote grants, as the justices stood in solidarity with one another to belie their partisan inclinations. Even that is better than the current system.
But after two decades of polarization came to a head this month with an obvious, politically minded grant, the chief justice can no longer spout the institutional line and tell us with a straight face that he and his colleagues are beholden to no political ideology.
We’d like to believe that the third branch hasn’t been impacted by the hyperpartisanship of today. But we’re not naive. If we’re wrong, show us. Don’t just tell.
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This article originally appeared on USA TODAY: Supreme Court secrecy: Disclose votes on divisive issues like abortion