The Supreme Court isn’t political — and reversing Roe v. Wade wouldn’t make it so

The U.S. Supreme Court’s term began this week, and the knives are already out. Continuing its attacks from last year, progressives claim that the Court has turned political and works mainly to implement Republican policies. This is a familiar critique from progressives, who often complain about politics when the Court fails to back their favored policies.

Earlier this year, President Biden signed an executive order creating a commission to determine whether Congress and the president should expand the number of justices on the Court. This move served two possible purposes. First, it addressed some Democrats’ demand for immediate expansion of the Court in the wake of Justice Amy Coney Barrett’s confirmation. Second, it could have implicitly put pressure on the Court to rule in Democrats’ favor.

Prominent Democrats on Capitol Hill are also ramping up the rhetoric, with calls by Sen. Sheldon Whitehouse (D-R.I.) to investigate federal judges and threats by Senate Majority Leader Chuck Schumer (D-N.Y.) that the country will “reap the whirlwind” of the justices’ decisions.

But the Court has delivered plenty of decisions that conflict with the conservative agenda. Last term in Trump v. Vance, the Court ruled that a sitting president could not evade criminal investigation and that New York City could obtain then-President Trump’s financial records. The Court also rejected the latest challenge to the Affordable Care Act in California v. Texas and denied relief to President Trump when his lawyers submitted challenges to the 2020 presidential election.

And let’s not forget Bostock v. Clayton County, when the Court ruled that Title VII of the Civil Rights Act applied to gay and transgender individuals. Claims that the Supreme Court acts as a political appendage of the conservative movement or Republican Party just don’t hold up.

This term there will be reams of paper devoted to this year’s biggest case, involving Mississippi’s limitation on abortions. Progressives fear the Court will use the case to overturn Planned Parenthood v. Casey and Roe v. Wade. So they are pulling out the stops to exert influence on the Court before the case is heard and decided. 

The Supreme Court inserted itself into politics when it decided to overturn Texas law in Roe v. Wade in 1973. The Texas legislature had enacted a law banning abortion — a political act by a political body. And the people had a political remedy if they wanted the law repealed: They could have voted candidates who favored revoking the law into office. Roe removed the abortion issue from the part of government most accountable to the people – the legislature – and made the Supreme Court the ultimate authority on a matter that should be decided in the political realm.

If Roe is overturned, the authority to determine whether and under what circumstances abortion is legal would return to state legislatures and thus would remove the Supreme Court from the political arena. If that happens, progressives will still have recourse. They’ll be able to work to elect pro-choice candidates in states that limit abortions and work to change state law.

Justices are appointed to the Court for life. In theory and practice, they should not allow pressure from either party to affect their decisions. And they must not be swayed by hyperbolic claims that overturning Roe politicizes the Court. Rather, overturning Roe would be a reminder that judges are beholden to the text of the Constitution, not to the whims of either political party.

Michael O’Neill is assistant general counsel at the Landmark Legal Foundation.