TThe Supreme Court is a messy institution. Its six conservative justices are locked in infighting over both the pace of their shared ideological project to reshape American law and life along right-wing predilections and their preferred methodology for doing so. Their bickering is not helped by the fact that two of them, Clarence Thomas and Samuel Alito, have repeatedly embarrassed the court with clumsy public scandals that have drawn attention to the court’s crises of legitimacy like a vulgar flag flying over One First Street. The liberals, for their part, are exhausted, impotent and, at times, seemingly publicly desperate. Their dissents have sometimes taken on a tone of exasperation and exasperated sarcasm, as if they were turning to the country and asking, “Can you believe this?” Its most senior member, Sonia Sotomayor, recently told an interviewer that in recent terms, since the court’s conservative supermajority was sealed under the Trump administration, she has sometimes gone into her chambers after the announcement of major decisions and cried. She says she expects to have to do so again: In a recent dissent, she issued a dire warning about the future of same-sex marriage rights.
The court’s supporters like to point out that it controls neither the military nor the federal budget; the court’s legitimacy, they say, derives solely from the fact that people believe it is legitimate. But increasingly, many of them don’t. The court’s approval rating remains at a record low, and the behavior of its justices in recent years has shattered the mystique of scholarly seriousness the institution once claimed. They don’t seem like wise legal scholars, carefully and dispassionately weighing the merits of competing interests and claims. Instead, they seem more like a bunch of bumbling partisan hacks—perhaps just more cynical and less smart than the average Republican operatives in suits all over D.C.
The court was not particularly competent when it ruled on Wednesday, for example, a design advice in Moyle v. United States, was briefly uploaded to the court’s webpage. The case involves Idaho, which has one of the nation’s most extreme and sadistic anti-choice legal regimes, and questions whether states’ efforts to ban abortions even in medical emergencies could be undermined by Emtala, a federal law regulating emergency care. . After it was uploaded, the opinion was quickly taken down; in a statement, a Supreme Court spokesperson said the opinion had been briefly uploaded by mistake. By then, Bloomberg News had obtained the full text of the draft, and it was published shortly thereafter.
This is the third time in recent history that an opinion in a high-profile Supreme Court case has been leaked before official publication. The first time was Judge Alito reportedly told a conservative movement activist who is friends with his upcoming decision in 2014’s Burwell v. Hobby Lobby , a case that struck down the Affordable Care Act’s mandate for contraceptive coverage for religious employers; the second was when Alito’s draft majority opinion in Dobbs was leaked to Politico nearly two full months before it was finally issued by the court. All three of these leaks concern cases involving women’s reproductive rights.
But if the court is clumsy in its functioning, embarrassing in its public personas, and clearly divided in its internal relations, then the leaked order in Moyle also shows that the conservative majority can be quite calculating in its political strategy. In the draft decision, issued per curia (that is, unsigned), the court dismisses the case as imprudently granted and sends it back to the lower courts. They include reinstating a lower court order that had allowed emergency abortions to continue at Idaho hospitals while the case proceeds. For now, that means that women experiencing failed pregnancies in Idaho can still get the care they need to preserve their health, their fertility, and their lives; hopefully, emergency room doctors will feel safe enough to actually perform the procedures, and patients will no longer have to air removed from the state to receive the routine care that will stabilize them. That is what matters most to the American public: that no lives are needlessly lost in the service of the anti-choice agenda for the foreseeable future.
But what seems most important to the court’s conservative majority is getting the abortion issue — and an inevitable ruling that will eventually allow states to ban emergency abortions — past the November elections. The decision in Moyle was clearly a compromise between the Court’s three liberals, who wanted to preserve the lives of women, and the three more pragmatic conservatives — John Roberts, Brett Kavanaugh and Amy Coney Barrett — who wanted to preserve Donald Trump’s election chances. These conservatives know that a ruling that says states can allow women to bleed, develop septic infections, have seizures from eclampsia, lose the function of their uterus and ultimately die – in deference to preserving what is by then already doomed , useless pregnancies – would harm the Republican candidates in this November’s elections. That doesn’t mean they don’t want to issue such a murderous ruling; it means they want to do this at a more politically opportune time.
So three conservatives on the court are behaving like Republican political strategists, trying to hide their own legal agendas in order to minimize the damage to their favored party in an election year. That would be bad enough. But not all of the court’s conservatives can display even this level of cynical, self-interested restraint. Although the order was issued per curia, Alito dissented, arguing that state bans on emergency abortions should be enforceable under federal law; he was joined by Thomas and Neil Gorsuch. Some of his reasoning was echoed by Barrett, whose concurrence, peppered with hand-wringing concerns about whether Emtala adequately protected the conscience rights of anti-abortion doctors and whether it might preempt a state criminal law, read like a road map for anti-abortion advocates who might want to revisit the issue at a later, more politically opportune time. (Another sign of the court’s dysfunction: how often these days do opinions not come with a flood of dissent and concurring opinions, with the justices apparently very keen to publicly distinguish their own thinking from that of their colleagues.)
Together, their writings made clear that while the court’s conservatives are divided—at times fiercely and irritably—over how quickly to move forward, they are united on their ultimate goal: One day, probably sooner than we think, this case will come back, and the Supreme Court will allow states to ban emergency abortions. What follows will be blood on their hands.
