Abortion ruling leak heightens perception of a politicised US Supreme Court

Abortion rights campaigners demonstrate outside of Evo A. DeConcini U.S. Federal Courthouse in Arizona on May 3, 2022. PHOTO: REUTERS

WASHINGTON (NYTIMES) - The revelation of a Supreme Court draft opinion that would overrule Roe v Wade has caused many Americans to express doubts about whether the justices are guided by the law rather than by their political beliefs.

In interviews across the country, even some opponents of abortion expressed unease with the way that a majority of the court had coalesced behind the sweeping draft written by Justice Samuel Alito that would undo nearly 50 years of legalised access to abortion nationwide.

Rebekah Merkle, an author and mother of five in Moscow, Idaho, said she thought that Supreme Court justices would be "vindicated as the heroes" if they struck down Roe v Wade. But although she approves of the composition of the court, she does not dispute that it finds itself deeply enmeshed in politics.

"It certainly seems more politicised to me than it used to be," Merkle said. "And part of it is because politics have gotten so ugly recently. And that seems to have definitely impacted the court as well."

Jenny Doyle, a neonatal nurse practitioner and mother of two in Boulder, Colorado, was so distressed by the Roe news that she considered whether she should leave the country. "I think Iceland sounds good," she said.

But she was on the same page as Merkle in seeing the court as an increasingly political actor.

"I absolutely believe in a term limit on the Supreme Court," she said of justices who can choose to serve until they die. "They are losing touch with the real America and the real issues of Americans."

Scholars and political experts have regularly debated whether the court's steady march to the right, exacerbated by increasingly contentious confirmation fights and disputes like the Senate's refusal to even hold a hearing on President Barack Obama's nomination of Merrick Garland, was sapping public faith in the court as fundamentally a legal forum.

Also perhaps straining that faith was the now-familiar ritual of conservative nominees professing their view of Roe as settled law and their respect for precedent - and then apparently voting to overturn it the first chance they got.

Neil Siegel, a Duke University law and political science professor, said that trust in the institution was damaged both by the leak and by the mocking tone of the draft opinion, which he called "extraordinary and egregious".

"What the leak and the draft have in common," he said, "is a disregard for the legal and public legitimacy of the court - and a failure to register that the justices and their clerks are temporary occupants of an institution that is greater than themselves."

Even before the impending decision to revisit abortion rights reopened painful national divisions, public faith in the court had deteriorated sharply. A national survey by Pew Research Centre conducted early this year found that 54 per cent of U.S. adults had a favourable view of the Supreme Court, compared with 65 per cent last year.

An overwhelming majority of adults - 84 per cent - said the justices should keep their political views out of their judicial decisions, but only 16 per cent of that group felt the court did a good or excellent job of it. Over the past three years, Pew found, approval of the court had declined 15 percentage points, reaching its least positive rating in nearly four decades.

A Morning Consult-Politico survey released Wednesday found that about 66 per cent of respondents said they support setting term limits for justices, with about 21 per cent disapproving.

Nicole Lamarche, pastor of Community United Church of Christ in Boulder, said Tuesday that she traced her disillusionment to the Republican senators' blockade of Obama's Supreme Court nominee after the death of Justice Antonin Scalia in 2016.

"To me, when they refused to appoint Merrick Garland or even begin the hearings process, that to me was a sign of a different time," Lamarche said.

But the fast and furious appointment of three conservative justices during the Trump administration sent the court veering to the right, with the confirmation of Justice Brett Kavanaugh in particular deepening divisions.

In recent months, the congressional investigation into the Jan 6, 2021, attack on the Capitol revealed that Ginni Thomas, the wife of Justice Clarence Thomas, had urged former President Donald Trump's chief of staff to overturn the results of the 2020 election.

For decades, Americans have told pollsters roughly 2-1 that they support a constitutional right to abortion; as recently as last week, in a Washington Post-ABC News poll, 54 per cent of Americans said Roe should be upheld, compared with 28 per cent who wanted justices to reverse it.

When the challenge to Roe - in a case about Mississippi's 15-week abortion ban - was argued in December and it became clear that five justices were ready then to overrule the decision, Justice Sonia Sotomayor articulated the public's gathering suspicion.

"Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" Sotomayor asked.

This week, the sense of unease spread from the corridors of power to coffee shops on Main Street. Even some Republicans expressed alarm at the court after the leaked draft of Alito's scornful dismissal of Roe.

"It rocks my confidence in the court right now," said Senator Lisa Murkowski of Alaska, one of the few Republicans in the Senate who support abortion rights.

Chief Justice Maureen O'Connor, a Republican with a reputation for independence who presides over the Ohio Supreme Court, was particularly taken aback at the spectacle of a leaking scandal at the nation's highest court. "I'm not shocked very easily. This shocked me," she said. "This is just not done."

Americans across the political spectrum expressed similar doubts.

As Janna Carney, 35, picked up lunch near the downtown Los Angeles office where she works as a creative director in advertising, she said of the justices, "I liked the idea they couldn't be owned by anybody, because you can't vote for them; they're not running campaigns."

Now, she said, she has trouble regarding them as neutral arbiters.

The country seems to have slipped so far into "red team vs. blue team" thinking that "we don't have these nine impartial judges; we count them as team members," she said. "It feels like our whole system is crumbling. It feels like we're Rome and this is the fall."

Others see the same thing - that justices are no longer independent voices who can evolve over time, moving left or right, but akin to a political slate.

"They're lifetime appointments, and now they're political appointments," said Donna Decker, a poet who lives in Tallahassee, Florida. "In the past, we were surprised by some of the appointments. At first, someone might have seemed conservative and then voted liberal, and vice versa. That's not happening in the last two years. And that does concern me."

In Oakland, California, Cesar Ruiz, 27, a tech worker, said he kept remembering that five of the justices were appointed by presidents who took office without a popular majority, at least in their first terms.

When news of the leaked draft flashed on his cellphone, he said, "I remembered in high school, learning about the Supreme Court and Roe v Wade and all the civil rights we gained in those years. Now an unelected, undemocratically appointed court is about to just wipe that out."

For many Americans, however, most unsettling was uncertainty about where the court goes from here.

"It's a hell of a shot to take away Roe v Wade, but it's just the start," Fred Johnson, 60, a retired US Army colonel and high school social studies teacher, said from a bar stool in a brewery in Louisville, Kentucky. "What's next?"

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