14: The Courts

On May 2, 2022, a leaked draft of a majority opinion written by Supreme Court Justice Samuel Alito was published by the news website Politico. The leak confirmed what court-watchers had long speculated: the Supreme Court was about to overturn its 1973 decision in Roe v. Wade, which had declared the right to abortion to be constitutionally protected. One month later, the reversal became official when the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that no right to abortion exists in the Constitution, and that Roe was “egregiously wrong” for having claimed otherwise. The question of whether to legalize abortion was now once again a matter for the states to decide on an individual basis.

The Dobbs ruling was a landmark victory for pro-life advocates, who had spent nearly half a century attempting to reverse Roe and return abortion policy to state control. Although Dobbs was technically a 6–3 decision, only five judges (the smallest possible majority) supported overturning Roe. The critical fifth vote belonged to Justice Amy Coney Barrett, who had been nominated by President Donald Trump and confirmed by the Senate in October of 2020 as the replacement for the recently deceased Justice Ruth Bader Ginsburg. Nominating a staunch conservative judge like Barrett to succeed Ginsburg — considered by many to have been the court’s archliberal — caused a major shift in the average ideology of the court, making Barrett’s nomination particularly controversial.

Compounding the controversy was the fact that Ginsburg’s death had occurred less than two months before the 2020 presidential election. At the time, Democrats contended that the vacancy should not be filled until after the presidential inauguration in January (which might usher in a new president), while Republicans asserted Trump’s right to nominate a replacement at any point during his presidency. This disagreement was the exact opposite of the one which occurred in 2016, when Republicans argued that a vacant Supreme Court seat should be left to the next president to fill and Democrats insisted that then-President Barack Obama was well within his constitutional authority to nominate a new justice.

The Dobbs leak was an exceedingly rare moment of transparency for the federal judiciary, generally the most mysterious branch of America’s national government. Most of its work occurs out of the public eye. No cameras are allowed in the courtroom while the Supreme Court is in session (though audio recordings are permitted). Its deliberations and rulings are cloaked in the complexity and opaqueness of the law. Its justices do not crave the spotlight the way presidents and members of Congress do, nor do they openly articulate their political beliefs, preferring instead to maintain an aura of impartiality. In these and other ways, the judicial branch appears far less political than its legislative and executive counterparts, and federal judges strive to maintain that perception.

Yet in key moments — the death of a justice, the nomination of his or her replacement, a landmark ruling in a major case — the federal courts suddenly intrude upon America’s political consciousness, often sparking bitter disputes over their intervention (or nonintervention) in governmental affairs in which many citizens feel they shouldn’t (or should) intervene. What was once indisputably the weakest branch has evolved to profoundly shape public policy in the United States. Notwithstanding its cultivated image of aloofness and neutrality, the federal court system and the judges who sit on its benches are anything but nonpolitical.