Supreme Court Abets Lawlessness in Texas Abortion Ruling

Supreme Court Abets Lawlessness in Texas Abortion Ruling

State governments should never be allowed to eliminate constitutional rights by structuring laws so that they must go into effect before courts can review them.

By Jonathan Bernstein

September 2, 2021, 8:30 PM GMT+9

Those of us who believe that Roe v. Wade was correct when it gave women a constitutional right to abortion in 1973 are obviously unhappy with the Supreme Court’s “shadow docket” decision to de facto overturn it — or, as Dahlia Lithwick put it in Slate Wednesday evening, Roe was “overruled this week, or nullified, or merely paused for a few million people.”

But well beyond that: Procedure matters, and the ad hoc, unjustified procedure in this case — procedure that produced a sharp and compelling dissent from Chief Justice John Roberts, who may eventually join a majority to destroy or overturn Roe — may have done as much to undermine the rule of law as anything we’ve seen in these last years of threats to constitutional government. 

It simply can’t be the case that state governments can eliminate established constitutional rights by structuring laws so that they must go into effect, thus robbing people of those rights, without the courts having any option of stopping them. That’s what Texas and a handful of judges have done in this case, and it’s wrong and it’s lawless even if Roe was incorrectly decided and the Texas law — which effectively puts abortions off limits after six weeks of pregnancy by giving citizens the power to sue anyone who “aids or abets” them — would eventually be upheld (for more detail, see Rick Hasen’s reaction). 

The courts are a political branch. They always have been. They’re supposed to be. That’s not a problem. 

But there are implicit but important rules about how they are political. Precedents can be overturned. They can be evaded so many times and so many ways that they no longer exist. They cannot simply be ignored. Justices can be partisan — there’s nothing new in that — but they need to cloak it in proper form, and proper procedure. They can’t simply say that they are ruling such-and-such a way because they are Republicans, or because that’s the outcome they want. Nor can they veil it so thinly that they might as well say so explicitly. 

Or, that is, they can — but in doing so, they behave improperly, and threaten not only the legitimacy of the judiciary but of the entire system. A five-Justice majority that essentially says they’ll do whatever they want because they have five votes and tough luck to anyone else — and yes, that’s basically what the Court did in this case and has done or come close to doing in others — is acting lawlessly, full stop. In doing so, these five Justices are inviting everyone else in the political system to simply do whatever they have the power to do, whether it’s overturning elections, packing or stripping jurisdiction from the courts, or whatever else they can get away with. 

The rule of whoever has the votes can do whatever they want is not constitutional government. 

And that’s before we even get to the specifics of this Texas law, which undermines democracy and the rule of law in ways both very old (by in effect threatening the full citizenship of women) and novel, at least in this form (by promoting vigilantism). 

I fear for what comes next.