Justice Felix Frankfurter once said that Supreme Court justices are molders of policy rather than impersonal vehicles of revealed truth. He was right. So, when members of the Supreme Court give speeches asserting that they are not political, they speak only partial truths. When Chief Justice Roberts said a Supreme Court justice was like an umpire calling balls and strikes, he was way off the mark. To borrow a locution Fred Schauer used in a different context, it is like saying a butterfly is an adjusted camel.
This does not mean that there are no limits on the Court. Two of them are crucial. First, it is illegitimate for the Court to make decisions based on which political party would be benefited – as the Court did in Bush v. Gore. Second, although the Court can overrule precedent in an appropriate case, depending on the circumstances there can be a heavy burden against doing so. In my view, the burden is insurmountable regarding the right recognized in Roe and Casey wholly apart from the merits of the decisions. First, several of the justices who will vote to make Roe meaningless testified under oath to the Senate in a way that indicated they would respect Roe. To move away from that testimony would be indefensible. Second, the Court in Casey reaffirmed the central holding of Roe in a thorough review of the question when to respect a precedent and when not. There is more, but overturning Roe – a decision backed at the time by a Republican majority of justices – will leave a “stench” that no amount of pious speeches will be able to overcome.
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