Comment by Ramesh Ponnuru: Supreme Court need not fear political reaction to abortion – West Central Tribune

Millions of Americans are dissatisfied, albeit furious, with the U.S. Supreme Court because of its reversal in the 1973 abortion-rights precedent Roe v. Wade last month. There is more talk of a political backlash against the high court than at any time since the era of widespread opposition to its decisions on school desegregation in the 1950s.


Representative Alexandria Ocasio-Cortez, the Bronx Democrat, suggests that magistrates need more checks and balances. Senator Ed Markey, the Massachusetts Democrat, said that the latest abortion decision, Dobbs v. Jackson Women’s Health Organization, justifies expanding the court to let President Joe Biden pack it. Other critics of magistrates are calling for term limits on them. Others issue sad warnings that the court is losing its “legitimacy”.

But conservative magistrates need not worry that their decision on Dobbs will prove their defeat. The progressive reaction in court has a greater chance of backfiring. That reaction failed to take seriously a key feature of Dobbs ’structure, for which the court relinquished authority on abortion policy rather than claim it. There is little that other political actors can do for the courts to exercise the power they do not want.

The history of the Supreme Court suggests that it shifts itself to the line of fire when it makes itself obstructive to policies favored by a powerful political group. When it tried to block the departure of Native Americans from the eastern states in the 19th century, President Andrew Jackson established that the rest of the government could ignore it. In the first third of the 20th century, the court broke progressive economic law. After undergoing intensifying criticism for it during the New Covenant period, it felt necessary to reverse itself and let such a law stand.

What, on the other hand, does it mean to disobey the Supreme Court decision on Dobbs? The decision seemed aggressive to its opponents as it reversed a long time ago. But Dobbs did not tell policymakers to do anything specific about abortion. For them to leave it legally will follow a decision such as its prohibition. When there is no command, nothing is to be disobeyed.

There are steps that Congress and the president can take against the court. But they may not be able to accomplish the goal of restoring liberal abortion policies or not be necessary to carry it out.

It is likely that it is within the constitutional power of other branches to remove federal courts of jurisdiction to hear cases regarding abortion. But it won’t restore Roe’s judicial veto on state abortion policies. This will put the veto unreachable. Expanding the court and its packing of new liberal justices, on the other hand, could bring Roe back. It can also do the impeachment and removal of conservative magistrates. But if progressives have the political power to carry out either plan, they will have more than enough to enact a national law protecting abortion.

Moreover, the predictable long-term effect of court packing is to weaken the judiciary, as magistrates have found that their decisions will only last until an election delivers control of elected branches to its opponents. . This reduction would make the courts more likely to overrule legislatures and more likely to prevail if they did. But this is exactly what progressives value about Roe’s impact on abortion policy.

It may, then, that the real danger to the conservative majority in the Supreme Court is that it will no longer provoke a backlash on abortion-or, for that matter, social issues such as contraception and same-sex marriage. On those issues, too, progressives are more eager to see federal courts use power than conservatives. Conservative magistrates can generate stronger opposition by removing laws and policies.

So far, court decisions on campaign finance and guns have not polarized the public like Dobbs did. A determined Democratic party with control over the White House and Congress could easily get away with many of its controversial decisions on economic issues. The court did not deny Congress the authority to fight climate change, for example, but instead said it should do so explicitly.

But the court could have been more aggressive. Imagine that magistrates set strict limits on the congressional delegation of authority in making bureaucratic rule that modern government can hardly maintain. Some conservatives and libertarians will be pleased. However, the court will also handle its own issue in a way that Dobbs did not. Everyone who wants a big, active federal government needs to beat the court to achieve their policy goal.

Even court decisions on guns, as controversial, have limited practical impact. Its decisions in 2008 and 2010 fell on unusually strict municipal ordinances. Its recent decision against New York’s restrictions on bringing guns to the public is in line with the policies of at least 37 states. Proponents of stricter regulation are usually constrained by the political process, not by the courts. But that, too, could change: Say the court dismissed background checks as an intolerable violation of the right to hold a firearm.

All of these issues, of course, can come together in the noise of politics. Perhaps the magistrates, seeing the opposition to Dobbs as distressing, would be overconfident on economic questions. Or maybe the insult to Dobbs would make progressives more accountable to strike against the court when it makes a decision unrelated to abortion.

However, what progressives are most angry about the court today, is not because it blocks democratically implemented policies but, in abortion, it refuses to do so. Their resistance is not over-reaching but shrinking. Even if they are right, they can do nothing about it.

Ramesh Ponnuru is a Bloomberg Opinion columnist. He is the editor of the National Review and a fellow at the American Enterprise Institute.

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