TIPP Insights: The last step in the Supreme Court’s politicization

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By tippinsights Editorial Board, TIPP Insights

On Monday, Politico published an explosive story suggesting that a February draft of private deliberations at the United States Supreme Court could overturn its landmark 1973 abortion ruling, Roe v. Wade.

The extraordinary breach of the Court’s private deliberations, as the Wall Street Journal described it, amounts to the apex court coming full circle as a political institution. Something like this has never happened in the venerable institution’s 233-year history.

Shocked at the leak, media outlets scrambled to provide context and prepare Americans for what lies ahead. Early drafts of decisions often change, said the New York Times. ABC News repeated the Journal’s assessment calling the news an “extraordinary breach” of Supreme Court protocol and tradition: “Never before has such a consequential draft opinion been leaked to the public before publication.”

The Supreme Court is, of course, a political body created by the political arms of the government to oversee the legal ramifications of policy, always with a keen political eye. The Court’s most consequential decisions have reflected the country’s mood and changed its arc.

In Brown v. Board of Education (1954), the Court held that racially segregated public schools are unconstitutional. In Gideon v. Wainwright (1963), the Court ruled that individuals charged with a felony must be appointed free legal counsel if they cannot afford their own lawyers. In the New York Times v. Sullivan (1964), the Court set the recklessness standard for defamation lawsuits against media organizations, resulting in the press enjoying near-unlimited power since.

State laws prohibiting interracial marriage were struck down in 1967, and in 1974, the Court waded into presidential politics. The President cannot claim executive privilege to withhold evidence from a criminal trial, the Court said, leading to President Nixon resigning and green-lighting politically-charged impeachment hearings of future presidents Clinton and Trump.

In each case above, the Court’s decisions were unanimous. Court watchers have noted how Chief Justice John Roberts often lobbies other justices to make a political statement by rendering unanimous verdicts even if they have to narrow down the scope of the ruling.

The confirmation process of a Supreme Court justice is also one of the nation’s most politically fraught. Senators on the Judiciary Committee, which fulfills Congress’s advice and consent role when presidents nominate a justice, covet their time in front of TV cameras during gavel-to-gavel hearings. Many launch their own political careers for higher office. President Biden and VP Kamala Harris succeeded and share a rare distinction. No two White House office holders in recent memory ever both served on the Committee.

Current Judiciary members, including Amy Klobuchar (MN), Cory Booker (NJ), Lindsey Graham (SC), and Ted Cruz (TX) actively sought their party’s nominations in the last two election cycles. Current Republican senators on Judiciary, Mike Lee (UT), Josh Hawley (MO), and Tom Cotton (AR), are all potential 2024 nominees.

Lobbying groups of every color and stripe organize to support or bring down judicial nominees. The most egregious example was when Justice Brett Kavanaugh underwent an aggressive campaign by the Left that charged him with sexual harassment when he was in high school. His detractors even produced a witness, Christine Blasey Ford, whose testimony was muddling and confusing. A week-long FBI inquiry found no evidence to support the allegations, and Kavanaugh was confirmed in one of the Committee’s closest votes, 50-48.

This time, what has arrested the media is the sheer political calculus behind the leak. Since the disastrous withdrawal from Afghanistan, President Biden’s poll numbers have been consistently poor, with more disapproving of his performance than approving. His legislative efforts have stalled, often hindered by members of his own party. Inflation is at a 40-year high. The southern border has never been more porous. The Ukraine war is dragging on and testing American patience. The administration has been vague in articulating America’s goals in the conflict beyond making confusing statements about uniting democracies against a ruthless dictator.

Even from friendly outlets, media assessments have been harshly critical of the Democrats. Will Hispanics abandon them in the midterms? How committed will Blacks be? How badly will the House fall? Will the Senate switch to Republican control?

The January 6 committee and its hatred of Trump can only help energize the Democrats some. With nothing going well for the Democrats, what could political operatives do to bring hope to a patient on life support?

The brilliant leaker had an answer. Nothing lights a fire in the Left’s belly than a potential loss of abortion rights. There’s no accountability or penalty anyway for him/her. The leaker is unknown to anyone but Politico reporters Josh Gerstein and Alexander Ward, who, as is vaunted practice, will never reveal their source. Even more importantly, the media has already triggered its backup defense – that the story could end up not being true. After all, the leak only represents a private first draft from February.

But the consequences of the leak are profound. It has already energized the distraught Left. It will likely distract attention from President Biden’s woes. Abortion coverage would be non-stop until the Court officially rules in a Mississippi case before June 30, so feverish that even war coverage would likely be demoted to the back pages.

Fearing a backlash, some members of the Court could switch their vote and decide to keep Roe v. Wade. If this happens, expect additional leaks from political operatives in the Court in the years to come, forever changing the Court’s DNA. If the Court indeed overturns Roe, expect the summer to be a replay of the BLM riots from two years ago.

The Left needed a social justice cause to rally the Democrats. For the first time in Supreme Court history, the leaker happily obliged. The Court’s politicization is now complete.

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