Division over Dobbs raises concerns about Supreme Court’s legitimacy

Nikki McCall said she fears the U.S. Supreme Court will overturn other rights like the one legalizing same-sex marriage. (IL photo/Marilyn Odendahl)

The decision to overturn the nearly 50-year precedent upholding a constitutional right to abortion came at a time when the public’s approval rating of the U.S. Supreme Court was already at historic low. Now, the three dissenting justices say they fear the decision will further damage the judiciary’s reputation.

“… It undermines the Court’s legitimacy,” Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote in their minority opinion in Dobbs v. Jackson Women’s Health Organization.

However, the pro-choice and pro-life supporters who rallied the day after the Dobbs opinion was issued illustrated that the perception of the Supreme Court is not so much based on judicial reasoning or adherence to the original text, but rather is linked to whether one liked the outcome.

Timothy O’Donnell was among those who went to the Indiana Statehouse lawn to “celebrate the Supreme Court decision” that overturned Roe. He stood on the sidewalk, telling the passersby, “All lives are precious,” and he joined in the many prayers offered by the speakers.

“I see the Supreme Court decision as undoing a great harm and a great injustice inflicted on this country in 1973 with Roe v. Wade,” O’Donnell said.

At a pro-choice rally held on Monument Circle in Indianapolis, Lynne Martin had a decidedly different view. “Political hacks,” she said when asked what she thought of the Supreme Court.

Martin was in high school when Roe was issued, and while she did not pay much attention then, she said she “never, never, never” thought the federal right to abortion would be eliminated. Martin said she is bewildered at how reproductive rights could now be upended.

“I’m so sad. I feel like some of them lied to get on the U.S. Supreme Court,” Martin said of some justices who stated at their confirmation hearings that Roe was a precedent but then voted to overturn it in Dobbs.

Gerard Magliocca

Gerard Magliocca, constitutional law professor at Indiana University Robert H. McKinney School of Law, said he sees the majority’s ruling in Dobbs as reflecting the deep division across the country on the issue of abortion. In the absence of a national agreement, the decision on how much or how little to restrict the ability to terminate a pregnancy is now up to the individual states.

“At some points in our history, there’s a higher degree of consensus about what the Constitution should be and what the court should do. And if the court does it, people are generally happy,” Magliocca said. “We’re not in one of those times. … There’s bound to be a lot of division over what the court does.”

‘Well-orchestrated plan’

A September 2021 Gallup Poll revealed just 40% of Americans approved of the way the Supreme Court was doing its job. That is the lowest job approval rating justices have received since the national pollster started measuring the public’s view of the court in 2000. In August of 2000, when the first poll was taken, 62% thought the court was doing its job well.

Magliocca speculated the Supreme Court’s reputation may be getting dragged down by Americans’ declining confidence in public institutions in general. In addition, when the justices take a big step in a major case that makes some people very happy and others angry, the court gets drawn into a political controversy.

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Read more about Indiana Legislature’s special session to address tax relief and now abortion law.

Yet, the law professor continued, the public saying the Supreme Court is illegitimate is different than actually acting on that perception and not participating or paying attention to rulings. Such was the case when James Madison did not appear for oral arguments in the 1803 landmark dispute of Marbury v. Madison.

One thing that may have helped the public understand the majority in Dobbs is clearer writing. Magliocca said both the majority opinion and the dissent are filled with legal jargon, but given the public’s interest and the possibility that many nonlawyers will be reading the ruling, the writing should have been “more accessible, more plain spoken.”

“They knew this was something that would have an impact on people’s views of the court as legitimate,” Magliocca said. “Well, you should try to make some effort to talk in a way that is more comprehensible.”

Brenda Havens dressed as the late Ruth Bader Ginsburg during a rally against the SCOTUS decision in Dobbs. (IL photo/Katie Stancombe)

A few hours after Dobbs was issued, Brenda Havens was dressed as the late Justice Ruth Bader Ginsburg and listening to the pro-choice advocates who had gathered at Monument Circle. She wore a black judge’s robe complemented with a Banana Republic limited-edition jeweled dissent collar and button earrings. Also, she carried a custom-made flag with, “I dissent,” emblazoned on it.

The self-employed IT professional admitted that even though women’s choice supporters have known for months the decision was coming, she was among those who did nothing.

She echoed Martin in asserting the three justices confirmed under President Donald Trump all acted contrary to what they led Congress to believe in their confirmation hearings. Moreover, she said, “we were robbed during (President Barack) Obama’s term of a Supreme Court justice,” referring to Merrick Garland’s confirmation being blocked by Republicans.

Still, Havens said she has not lost faith in the courts. She pointed to federal judges who were nominated by former President Donald Trump but dismissed his 2020 election lawsuits.

“I think fundamentally we do not have a flawed judicial system,” Havens said. “I think this was, unfortunately, a well-orchestrated plan that has gotten us to this point.”

‘It’s still here’

Magliocca highlighted other times when the Supreme Court has been called into question, such as during the 1960s when the Chief Justice Earl Warren led the expansion of civil rights. Even so, determining the impact of Dobbs on the highest court will take years, he said.

Maria Aguayo (far right) attended a pro-life rally with her daughters following the Dobbs decision. (IL photo/Katie Stancombe)

Magliocca pointed to the 2000 election case, Bush v. Gore, when a split Supreme Court stopped the vote counting that put George W. Bush in the White House. Many people were angry and some were worried about the damage to the judiciary’s reputation but, noting his law students do not know who Al Gore is, the ruling caused no lasting harm, he said.

“The court has made a lot of terrible decisions,” Magliocca said. “It’s still here.”

At the pro-choice rally, people carried handmade signs that clearly expressed their outrage and exasperation. The signs read, “F— the Supreme Court” and “Abort the Court.”

Nikki McCall said she does not believe the anger over Dobbs will wane. The 21-year-old said she has seen a radical change in the Supreme Court, which has culminated in “an AR-15 (having) more rights than my uterus does.” The overturning of Roe will take “years to fix,” she said, but her generation is “very loud” and the “backlash will be full time.”

Attending the pro-life rally, Maria Aguayo and her daughters, Guadalupe, 14, Lourdes, 11, and Fatima, 13, were quietly listening to speakers and reciting prayers. Sometimes the chants and shouts from the pro-choice rally wafted through the air, but she said the Supreme Court listened and heard the country saying, “All lives matter.”

“They have listened to life inside the womb,” Aguayo said. “They are doing justice for everybody including unborn babies.”•

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