Ruling overturning Roe v. Wade sparks debate about Supreme Court's legitimacy amid partisan passions

WASHINGTON – In December, as the Supreme Court debated whether to overturn Roe v. Wade, Associate Justice Sonia Sotomayor posed a dire warning in the form of a question: How would the nation's highest court, she asked, "survive the stench" of the abortion ruling if it appeared the justices were engaging in politics.

Sotomayor, the most outspoken liberal on the court, said she wasn't sure it could.

Public approval of the Supreme Court was already falling, and the decision last week to overturn its 1973 precedent and wipe away the constitutional right to abortion amplified skepticism of the court among those who support reproductive rights. For those who oppose abortion, the decision fixed a colossal, decades-old mistake.

Though not unexpected, given the unprecedented leak of a draft opinion in May, the 6-3 ruling to uphold a Mississippi ban on most abortions after 15 weeks of pregnancy prompted protests over the weekend and sharp recriminations from Democrats.

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"This court has lost legitimacy," Sen. Elizabeth Warren, D-Mass., said Sunday on ABC's "This Week." "They have burned whatever legitimacy they may still have had after their gun decision, after their voting decision, after their union decision. They just took the last of it and set a torch to it with the Roe versus Wade opinion."

Americans opposed to abortion also turned out over the weekend, and GOP governors vowed to clamp down on access to the procedure.

"I think it's a very appropriate ruling," Arkansas Gov. Asa Hutchinson, a Republican, told NBC's "Meet the Press." "When you're saving life, that's an appropriate role of the state, and that's what the courts have said the states can determine. Other states might make a different judgment. That's why we have elections."

Entrenched divisions over abortion may further split the nation into two views of the court in the same way voters are divided over the other branches of the government depending on their political affiliations. That raises profound questions for an institution whose legitimacy rests on the notion that it is different from those branches, immune from the partisanship and political pressure that drive Capitol Hill and the White House.

"The 'stench,' using Justice Sotomayor’s word, from this conservative majority deciding to strip away from millions of Americans an established constitutional right at the core of bodily integrity and equal citizenship will poison public respect for the court for years to come," predicted David Gans with the liberal Constitutional Accountability Center.

Conservatives, including those on the Supreme Court, flatly rejected the idea that the ruling will undermine trust in the institution. A central point of Associate Justice Samuel Alito's 79-page majority opinion is that the Roe decision itself inflamed passions over abortion and raised questions about the court's legitimacy. The best thing the court could do, Alito reasoned, was to extricate itself from a deeply divisive political battle.

"The majority explains its view that the court’s legitimacy is served best when it has the courage to act as a court rather than a political body," said O. Carter Snead, a law professor at the University of Notre Dame. "This, in the majority’s judgment, is the proper role of the court, and fidelity to this principle of self-limitation is what confers legitimacy."

By more than 2-1, 61% to 28%, Americans opposed overturning Roe v. Wade, according to a USA TODAY/Suffolk University Poll conducted before Friday's decision. On the other hand, polls have shown most Americans favor some restrictions on the procedure. A majority, 55%, generally oppose abortion in the second trimester, according to a Gallup poll.

Confidence in the Supreme Court took a big hit as the justices considered two major abortion cases this term: a challenge to the Mississippi law banning abortion at 15 weeks of pregnancy and a Texas law that bans the procedure after six weeks. The court repeatedly allowed the Texas law to stand on procedural grounds last year.

Approval of the Supreme Court tumbled again in May after Politico published a leaked draft of the opinion in the Mississippi case – a draft that proved to be nearly identical to the ruling Friday. About 44% of Americans approved of the way the court was handling its job, down 10 percentage points from March, a Marquette Law School poll showed.

How people feel about the court depends a lot on their party affiliation: The court's approval in the Marquette poll rose 4 percentage points among Republicans, who are more apt to oppose abortion, but fell 23 points among Democrats and 6 points among independents.

"Legitimacy is a matter of what the public believes about the court, not what the court or I believe," said Neil Siegel, a professor of law and political science at Duke University. "The court cannot turn the clock back to 1973 and ask for a do-over. A solid majority of the country has consistently opposed overruling" abortion precedents.

In the most closely watched and controversial case to arrive at the high court in years, a majority of the justices – all of whom were appointed by Republican presidents – held that the right to end a pregnancy was not found in the text of the Constitution nor the nation's history. As expected, the decision shifted one of the most intractable culture war debates to states, setting up a patchwork of abortion laws throughout the country.

A five-justice majority voted to overturn Roe. That was a step too far for Chief Justice John Roberts, nominated by President George W. Bush. Roberts wrote separately to assert the court could have sided with Mississippi while upholding one of the court's best-recognized – and most heavily debated – precedents. No other justice joined Roberts, an unusual outcome and a repudiation of his incremental approach to decisions.

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Several states, including Kentucky, moved quickly in response to the decision, informing residents that trigger laws banning abortions once the Supreme Court overturned Roe were in effect. Liberal states raced in the other direction: California advanced legislation that would add an amendment to the state constitution to protect abortion rights.

In that sense, the opinion turned the issue back to the states, which have driven legal battles over abortion for years – passing laws to chip away at Roe. When Sotomayor spoke of the political "stench," she was referring to the fact that lawmakers in Mississippi defended the bill by noting the change in composition of the Supreme Court. The Magnolia State passed its law months after Associate Justice Brett Kavanaugh, a conservative, replaced Associate Justice Anthony Kennedy, a swing vote.

When Mississippi filed its appeal in early 2020, lawyers for the state argued that the court didn't have to overturn Roe to uphold the state's ban. Six months later, Associate Justice Ruth Bader Ginsburg, a Clinton nominee, died. President Donald Trump, who had vowed to name justices who would overturn Roe, selected Associate Justice Amy Coney Barrett, who was seated in October 2020, giving conservatives a 6-3 edge.

When Mississippi filed its next brief in the case nine months later, its argument was sharper: Roe, the state said, was "egregiously wrong" and needed to be overturned.

In their dissent, the court's liberals touted the justices in 1992 who, in Planned Parenthood v. Casey, upheld the central holding of Roe – a right to abortion under the Constitution – but limited how long into a pregnancy that right could be exercised. The court back then, Associate Justices Stephen Breyer, Sotomayor and Elena Kagan wrote, worked hard to avoid the appearance of politics.

"The American public, they thought, should never conclude that its constitutional protections hung by a thread – that a new majority, adhering to a new 'doctrinal school,' could 'by dint of numbers' alone expunge their rights," the liberal justices wrote. "It is hard – no, it is impossible – to conclude that anything else has happened here."

From Alito's perspective, the court in Casey dodged by attempting to quiet passions over abortion with a middle-of-the-road approach. The decades since, he reasoned, underscored that the court had tied itself in knots and never put the issue to rest.  

"We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work," Alito wrote for the majority in the Mississippi case. "This court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on."

Contributing: Maureen Groppe 

This article originally appeared on USA TODAY: Roe v. Wade decision sparks debate over legitimacy of Supreme Court