The leaked Supreme Court decision: what’s not being said

Something unprece­dent­ed hap­pened dur­ing the first week of May. A full copy of a draft Supreme Court deci­sion regard­ing abor­tion rights was leaked to the public.

Leaks from the court are not par­tic­u­lar­ly unusu­al but nev­er to the extent of this leak. Usually, it’s most­ly snip­pets of con­ver­sa­tions between the jus­tices or anec­dotes about the court.

But there are some issues relat­ed to this event that are not receiv­ing much dis­cus­sion or atten­tion.  Virtually all news sources are dis­cussing the out­rage of the leak itself and how it might affect the rela­tion­ships between the jus­tices and the press. Or about the impact of the deci­sion on the future rights of women to make deci­sions about their own health­care. Or the effect on oth­er rights that are now assumed but are not specif­i­cal­ly cod­i­fied in the constitution. 

But there is far less appre­ci­a­tion of how the state of the court got to this point.

First, it should be stat­ed that Senator Mitch McConnell has con­tributed might­i­ly to the cur­rent sit­u­a­tion of the court being over­loaded with con­ser­v­a­tive jus­tices.  His also unprece­dent­ed maneu­ver­ing in 2016 denied the Senate the oppor­tu­ni­ty to take up the pro­posed appoint­ment of Merrick Garland by President Obama. McConnell claimed that it was only prop­er for the “next” pres­i­dent to make that appoint­ment.  This occurred some nine months before President Obama would even leave office — so for that extend­ed peri­od, the court func­tioned with only eight jus­tices after the death of Justice Antonin Scalia. It should also be not­ed that this delay­ing tac­tic had not been used since Reconstruction.

And so, with the con­nivance of the sen­a­tor, President Trump was placed in the rare posi­tion of mak­ing three appoint­ments to the court. All three of whom had, in com­mit­tee hear­ings and in pri­vate meet­ings with indi­vid­ual sen­a­tors, indi­cat­ed their sup­port for uphold­ing the 45-year-old Roe v. Wade deci­sion — and who are all now aligned to over­turn that deci­sion.  One can only won­der what McConnell’s posi­tion would have been had Clinton been elected.

Secondly, vot­ers have nev­er seemed to ful­ly under­stand the impor­tance of the court when it comes time to elect a pres­i­dent.  Who could have pre­dict­ed in 2016 that the elec­tion of Trump would result in such a mon­u­men­tal change in the make­up of the Supreme Court?

The third issue relat­ing to this event is the nature of the “advise and con­sent” prac­tice, in which a Senate com­mit­tee grills the court nom­i­nee, some­times unmer­ci­ful­ly and almost always from a par­ti­san per­spec­tive.  These hear­ings are essen­tial­ly moot.  Questions are sel­dom designed to elic­it infor­ma­tion but rather to embar­rass or put the nom­i­nee on the spot.  Consider Senator Washburn’s ques­tion of nom­i­nee Jackson, “How do you define a woman?”  The only issue before the com­mit­tee should be whether or not the nom­i­nee has the legal qual­i­fi­ca­tions to be a Supreme Court jus­tice.  Most peo­ple don’t even real­ize that a law degree is not a qual­i­fi­ca­tion for being a justice.

Fourth, lawyers and judges are just peo­ple like the rest of us.  We might expect some­thing extra of them: a sense of fair­ness and impar­tial­i­ty, a deep under­stand­ing of the his­to­ry of the law in this coun­try.  But the truth — as has been amply demon­strat­ed of late — is that many of these nom­i­nees are either out­right liars or at least capa­ble of bend­ing the truth to its break­ing point.  Like most of us, they are peo­ple who aspire to greater things — and what could be greater to some­one in the legal pro­fes­sion than a seat on the Supreme Court?  And some of them will either pre­var­i­cate or obfus­cate as nec­es­sary to achieve a goal.

The week of May first will be one for the his­to­ry books.  Only time will tell if it’s a his­to­ry of dis­as­ter or one of con­cil­i­a­tion and ben­e­fi­cial change.