No one who has seriously followed the Court over the past few decades has any excuse for believing that, and if you lived through the 5–4 party-line decision to award the 2000 election to George W. Bush over Al Gore and still thought the Court was somehow sacred, I have an infrastructure bill’s worth of bridges to sell you. But while the elite reverence for and credulity about the judiciary was wrongheaded back then, it’s simply untenable now that a supermajority of the Court consists of trained right-wing ideologues. The repeal of Roe will be neither the first nor the last major decision this Court takes that upends laws a majority of Americans have assumed were permanent. Given Democrats’ grim outlook for this year’s midterm elections, President Biden’s persistent unpopularity, and the GOP’s extensive and largely unchecked efforts to permanently entrench minority rule in Washington, there’s no reason to think that our existing political institutions can adequately check the Roberts Court or that its composition will align any closer with public opinion on issues like abortion in the foreseeable future.
The one thing the Court apparently can’t control, however, is how much the public knows about its deliberations. The leaker — whoever it is and whatever their motivations — has done a public service, both by giving Americans who support reproductive rights a head start on mobilizing for a post-Roe legal order and by damaging the Court’s mystical aura of legitimacy at precisely the moment when it deserves to be damaged. If the Court is going to function as a partisan institution, then the public should know at least as much about how it works as we know about any other branch of government.
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