This Supreme Court, built by politics, doesn't deserve to rule on Roe v. Wade

Supreme Court justices are fond of claiming that their decisions are not influenced by politics.

Conservatives, in particular, insist that only the Constitution (originalism) and laws (textualism) truly matter. Justices across the ideological spectrum also pay heed to precedent, usually when it suits their cause.

But if politics doesn’t belong in the debate about Roe v. Wade, the court should have the humility to recognize that it is, perhaps more than any of its predecessors, the Court That Politics Built. The very existence of today’s conservative majority is due to blatant power politics.

Consider:

►The seat occupied by Justice Neil Gorsuch, a stickler on originalism and textualism, should have gone to Attorney General Merrick Garland. When Justice Antonin Scalia died in 2016, President Barack Obama nominated Garland, then a prominent federal appeals court judge, to take his place. But Senate Republicans refused to consider the nomination in an election year.

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►The seat occupied by Justice Brett Kavanaugh, now the likely swing vote on abortion, was vacated by Justice Anthony Kennedy. It was Kennedy who helped craft the 1992 compromise ruling in Planned Parenthood v. Casey upholding the right to abortion.

►The seat occupied by Justice Amy Coney Barrett, a firm opponent of abortion on a personal level, had been held by Justice Ruth Bader Ginsburg, an equally firm proponent of reproductive rights. Ignoring the standard it set four years earlier, the Senate rushed to confirm Barrett just days before voters defeated her benefactor, Donald Trump.

Politics will win if precedent reversed

This should be clear to Gorsuch, Kavanaugh and Barrett as they decide whether to remain a part of a 5-4 majority overruling Roe that was in place in February, according to the draft opinion leaked to Politico. Power politics created the current court. If they exercise that power to reverse a 49-year-old precedent, particularly when polls show a majority of Americans disagree with them, politics will have won out.

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What’s more, the reversal of prior high court rulings would represent a result Trump’s justices sought to portray as a long shot during their confirmation hearings. “It has been reaffirmed many times,” Gorsuch said of Roe in 2017. Kavanaugh labeled Roe and Casey "precedent on precedent" in 2018. Two years later, Barrett pledged to “follow the rules of stare decisis,” or regard for precedent.

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Some of the most destructive rulings by the high court in recent years have come when a narrow 5-4 majority insisted on all over nothing.

Chief Justice John Roberts was in the majority in those cases and presumably he stands by them.

But it is one thing to decide what Americans can say, or even how they can pray – another pet peeve of the conservative majority. It is something else to make reproductive rulings that govern women’s bodies.

It’s true that abortion isn’t in the Constitution. Neither is contraception, sodomy or same-sex marriage. And yes, some conservatives would be happy to do away with them all.

But the number of Supreme Court justices isn’t written into the Constitution either, and yet conservatives become apoplectic when liberals propose enlarging the court to water down its right-wing majority.

Win Mississippi case, leave Roe alone

To take a step back from Justice Samuel Alito’s draft opinion ditching Roe would not signify a loss for the conservative legal movement. As Roberts no doubt has advocated in private, the court could uphold Mississippi’s 15-week abortion ban. Period.

That’s what Mississippi asked for in the first place, before officials there decided to go for broke and urge the justices to overrule Roe and Casey. As such, it would be a win for abortion opponents – just not the ultimate victory they are hoping for.

Roberts – who has sought for most of his 17 years as chief justice to maintain the integrity and independence of the court, even by standing up to Trump – could be alone in favoring that incremental solution. It likely would take some internal negotiations to make it happen – something legal purists would claim is political.

But if politics doesn’t belong among the court’s many considerations, then it needs to look in the mirror – and stand down on Roe v. Wade.

Richard Wolf reported on the Supreme Court, the White House and Congress during a 45-year career in journalism.

This article originally appeared on USA TODAY: Trump Supreme Court justices don't deserve to rule on abortion, Roe