If Justice Samuel A. Alito Jr.’s leaked opinion overturning Roe is the judgment of the court, it may be unpopular; we don’t know yet. It will certainly be controversial. But that controversy need not damage the court’s authority.
Breyer observed that Chief Justice John Marshall in Marbury v. Madison “strengthened the norm of judicial review” by ruling “in a way strategically designed to avoid the risk that the president would ignore what the Court ordered.” Overturning Roe and removing a check on the elected branches would also be a high-profile use of judicial power that the politicians could not readily resist or nullify.
Justices Sonia Sotomayor and Elena Kagan both objected at the Dobbs oral argument that the court’s abortion jurisprudence was swinging rightward due solely to changes in its membership; Sotomayor questioned whether the court would “survive the stench.” But what is the alternative? For the court to change direction without a change in membership — as the New Deal-era court did under political pressure in 1937? That hardly suggests an independent or apolitical body.