When did America’s highest court go full Fox News? I’d say it was the moment the Supreme Court refused to block Texas S.B. 8, a state law that prohibits most abortions. It instantly became clear that this 6–3 conservative Court was emboldened and would do what former President Donald Trump suggested it would do: overturn Roe v. Wade. “Roe was already gone the moment the Supreme Court refused to intervene in S.B. 8,” Handbook for a Post-Roe America author Robin Marty told me. “When they stayed silent and let Texas ban almost every abortion in the state—and way before the point of viability—Roe was officially over even without a ruling coming down.” And we now know, with almost 100 percent certainty, that the actual ruling will be handed down in the coming months.
Roe has been settled law for 49 years. One day women in Texas had the right to end a pregnancy, and the next day, that right had been severely compromised. If Roe can be washed away, what else might be lost? More specifically, if the Court decides that the right to privacy was wrongly decided, what other private acts might it target? Same-sex marriage? Birth control?
Elie Mystal, justice correspondent at The Nation, summed it up best when he told me, “After decades of lying about their true intentions, the conservatives on the Supreme Court are merely doing what they were sent to Washington to do: enforce the Republican cultural agenda by judicial fiat.”
Chief Justice John Roberts, a George W. Bush appointee, has always been careful to maintain the appearance of the Court’s impartiality, even as it handed down conservative decisions—ruling that corporations have some of the same political-speech rights as people (Citizens United v. Federal Election Commission), undermining voting rights (Shelby County v. Holder), and allowing private companies a religious exemption when it came to providing birth control (Burwell v. Hobby Lobby Stores, Inc.). The Roberts Court was sort of like Bret Baier at Fox News: You knew it was conservative, maybe very conservative, but it presented as traditional Republican, not Tucker Carlson Republican. Leah Litman, a law professor at the University of Michigan, summed Roberts up this way to FiveThirtyEight back in 2020: “He’s concerned about maintaining his own power and the power of the court.”
When the Court allowed S.B. 8 to stand via the shadow docket, they were deciding, 5–4, to allow Texas to deputize common citizens to sue over the performance of abortions. As constitutional-law professor Stephen Vladeck told The New York Times last summer, “It says the state is not going to be the one to enforce this law. Your neighbors are.” Roberts sided with the liberal justices in a dissent that read, “The statutory scheme before the Court is not only unusual, but unprecedented.” Justice Stephen Breyer, also dissenting, wrote: “Texas’s law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy.” That the Court allowed this to stand tells me that they’ll go along with anything as long as it aligns with their beliefs.
It’s not the Roberts Court anymore—it’s the Alito Court. As Harvard law professor Richard J. Lazarus recently told the Times, “buoyed by a five-justice conservative majority to the right of the chief, Justice [Samuel] Alito has apparently concluded, as underscored by his first draft opinion in the Mississippi abortion case, that he can now swing for the fences using the broadest language possible.”
This week, Yahoo News/YouGov released the results of a survey of 1,577 U.S. adults conducted after the leak of the Roe draft opinion. It revealed that “registered voters have swung from mostly having confidence in the Supreme Court—by a colossal 40-point margin—to being evenly split on the question.” The swing happened in under two years. Roberts knew that ideologically driven rulings would undermine the legacy of the Court and of its justices. The Court will eventually be viewed as just another partisan institution, like the Senate or a state legislature. But even something as seemingly nonpartisan as term limits could make a big difference in evening out the Court, and in restoring some faith in America’s most powerful decider. Another, more partisan option would be expanding the Court. Maybe now that the mask is off, the Democrats will finally begin to admit to themselves and their constituents that this partisan institution needs a radical change.