As a new term begins for the Supreme Court, Monday’s New York Times lead story by chief SCOTUS scribe Adam Liptak threw a not-so-subtle hint to Chief Justice John Roberts: rule the right way on Mississippi’s new abortion law that bars most abortions after 15 weeks, or see the Court’s credibility crumble: “Abortion Leads Charged Docket in Court Return – Challenge For Roberts – Justices Defend Record as Polls Show Decline in Public Support.”
The Supreme Court’s standing in public opinion was a new concern for the media, which for decades were used to it making “progressive” rulings that furthered the liberal agenda without Democrats having to pass actual legislation. Liptak wrote a similar story for the front page in 2018, which also focused on Roberts as the moderate maintainer of the conservative Court’s suddenly endangered reputation.
A transformed Supreme Court returns to the bench on Monday to start a momentous term in which it will consider eliminating the constitutional right to abortion, vastly expanding gun rights and further chipping away at the wall separating church and state.
The abortion case, a challenge to a Mississippi law that bars most abortions after 15 weeks, has attracted the most attention. The court, now dominated by six Republican appointees, seems poised to use it to undermine and perhaps overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion and barred states from banning the procedure before fetal viability.
The chief justice, who views himself as the custodian of the court’s institutional authority, now leads a court increasingly associated with partisanship and that recent polls show is suffering a distinct drop in public support. At a time when the justices have become uncharacteristically defensive in public about the court’s record, one poll taken by Gallup last month found that only 40 percent of Americans approved of the job the court was doing, the lowest rate since 2000, when Gallup first posed the question.
Irv Gornstein, the executive director of Georgetown Law’s Supreme Court Institute, told reporters at a briefing that it had been decades since the court faced a similar dip in public confidence.
Liptak strove to keep the “conservative” Court on the back foot.
In a series of recent public appearances, several justices have insisted that their rulings were untainted by politics. Justice Barrett told an audience in Kentucky last month that “my goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”
The collective impression created by the remarks was one of defensiveness, said Mary Ziegler, a law professor at Florida State University.
In his quest to bolster the pro-choice side at the Supreme Court, Liptak found a professor to make a bold prediction: That Chief Justice Roberts could write the dissent in the Mississippi abortion case, in the name of preserving the court’s reputation. (Revealing that the Times considers taking the pro-choice side is equivalent to preserving the court’s reputation.)
The chief justice’s cautious support for abortion-rights precedents may continue in the Mississippi case, said Sherry F. Colb, a law professor at Cornell, though she said she did not expect his views to prevail.
“I wouldn’t have said this a few years ago, but I could imagine that Chief Justice Roberts will dissent,” she said. “Maybe he’ll even write the dissent.”
“He’s concerned about the court’s reputation and image,” Professor Colb added. “He really cares about the court as an institution.”
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