Recent U.S. Supreme Court decisions have resulted in a firestorm of calls for significant changes at the Court. The decision that has triggered the most intense calls for change is the 5-4 decision to overturn abortion policies and limits as spelled out in Roe v. Wade. Following closely behind are 6-3 decisions on affirmative action in college admissions and federal student loan repayment forgiveness. Much less fire has been focused on a ruling on the exercise of religious freedom in the workplace.
While trying to rally voters around calls for expanding the number of justices, term limits, or age-based retirements for the Supreme Court may be good politics in preparing for the 2024 elections, such changes are not needed and are not good public policy.
Below are wrong assumptions on the need for these changes and the facts why they should not be approved.
ASSUMPTION # 1 — The Court should always follow the legal doctrine of Stare decisis (not overturning prior decisions based solely on precedent and continuity); especially with prior decisions that have been in place for a relatively long time.
FACTS — The U.S. Supreme Court has overruled previous U.S. Supreme Court decisions over one hundred times. The most memorable was a 1954 decision that a ruling made in 1896 (58 years prior) that racial segregation with “separate but equal” schools nationwide was constitutional. By contrast, the Court reversing Roe v. Wade occurred 50 years after it was first decided.
WRONG ASSUMPTION # 2 – Overturning of Roe v. Wade prohibits states from approving their own standards on abortion rights and limitations.
FACTS — The ruling provides that each state can decide on abortion rights and limitations. In Maryland, the General Assembly has already approved a statewide referendum on an amendment to the state constitution on abortion rights in Maryland.
WRONG ASSUMPTION # 3 — 6-3 Court decisions with six votes from conservative leaning justices and three votes from progressive leaning justices will be the new normal.
FACTS — Every case is different, and outcomes will vary. Justices are not pre-programed computer robots. On the religious freedom in the workplace case, the outcome was a unanimous 9-0 decision. In three other recent cases, the court overturned rulings by lower courts in support of gerrymandered congressional district maps in South Carolina, North Carolina, and Alabama. In the North Carolina ruling, conservative leaning Chief Justice Roberts, and Justice Kavanaugh (both appointed by former President Trump) joined the Court’s three progressive leaning justices (Kagan, Sotomayor, and Jackson). In the South Carolina and Alabama rulings, Roberts, Kavanaugh and Justice Amy Coney Barrett (also appointed by former President Trump) joined the Court’s three progressive liberal-leaning justices.
WRONG ASSUMPTION #4 – The 6-3 “conservative” decisions referred to above are out-of-sync with public opinion.
FACTS – A poll conducted for ABC News after the affirmative action decision, reported respondents approved of it by a 20-point margin (52% approval vs. 32% disapproval). In the same poll, 45% of the respondents approved of the student loan forgiveness ruling, with 40% disapproving.
WRONG assumption #5 — Polling on the decision to overturn Roe v. Wade affirms the court is not in-sync with the views of a significant majority of Americans.
FACTS –Despite these polling results and despite efforts to brand virtually everyone associated with the Republican party as advocates of draconian restrictions on abortion rights, enough Republican candidates won U.S. House races in 2022 to secure a majority in the current Congress. Prior to then, support for a national abortion rights law in the Congress (even when Democrats controlled both houses of Congress) never had enough votes to become the law of the land. In 2016, Donald Trump told voters early and often he would appoint conservative leaning justices to the Supreme Court. Conversely, Hillary Clinton told voters early and often she would appoint progressive leaning justices to the Supreme Court. Enough voters heard those messages, gave Trump a win in the Electoral College, and ultimately allowed him to deliver on his campaign promise. Election results have consequences. Polling results do not.
WRONG ASSUMPTION # 6 –The need for significant changes at the Court are supported by all progressives.
FACTS — Despite his strong criticism of recent Supreme Court decisions, President Biden to date has yet to endorse expansion of the court, term limits, or age-based retirements for Supreme Court justices. Vice President Harris has not done so either.
In America’s government arena, there are many changes that merit further dialogue, deliberation, and consideration. Changing the U.S. Supreme Court is not one of them. Any changes are simply solutions desperately searching for a problem.
David Reel is a public affairs/public relations consultant who serves as a trusted advisor on strategy, advocacy, and media matters who resides in Easton.