Former Obama speechwriter explains why most Americans now hold the High Court in such low regard

25 July 2022

In December 2021, U.S. Supreme Court Justice Sonia Sotomayor used the word “stench” to describe the extreme politicization of the Court by far-right Republicans — and she isn’t alone in that view. Polls, in recent months, have shown the Court’s reputation suffering more and more.

David Litt, a former speechwriter for President Barack Obama, discusses that soiled reputation in an article published by The Atlantic on July 24 — laying out some reasons why most Americans, according to polls, now hold the High Court in such low regard. One of them is the Court’s ruling in Dobbs v. Jackson Women’s Health Organization, the case in which the Court overturned Roe v. Wade after 49 years and ended national protection for abortion rights in the United States.

“Just a few years ago, a clear majority of Americans trusted the Supreme Court,” Litt explains. “Now, a month after Roe v. Wade was overturned, poll after poll shows that a clear majority of Americans do not — to which many of the Court’s closest observers would say: ‘What took so long?’ For more than a decade, the Court has issued narrow rulings, decided by slim majorities, that align with Republican political goals.”

Litt continues, “Five justices unleashed dark money in politics. They gutted the Voting Rights Act. They pulled the rug out from under public-sector unions. In that sense, Dobbs — the decision overturning Roe — is part of a larger trend.”

The former Obama speechwriter goes on to stress that the implications of Dobbs go way beyond ending national protection of abortion rights.

“More than a radical opinion, Dobbs represents a radical new approach to interpreting the Constitution,” Litt warns. “If left unchecked, the justices’ decision could mark not just the end of Roe, but the upending of America’s system of checks and balances. Understanding why Dobbs is so dangerous, both to American society and to the American republic, starts with a principle known as stare decisis, which has guided the Court since at least the mid-19th Century. Latin for ‘to stand by things decided,’ its plain-English meaning is fairly simple. The Court should follow its past precedents. Current justices shouldn’t undo what past justices have already done, even if they think those past justices were wrong.”

Three of the five Supreme Court justices who voted to overturn Roe were Donald Trump appointees: Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett. The other two were Justice Clarence Thomas and Justice Samuel Alito. Litt points out that Roe wouldn’t have been overturned had Sen. Mitch McConnell not refused to consider President Barack Obama’s nominee, Merrick Garland, after Justice Antonin Scalia died in 2016. That seat remained opened former President Donald Trump appointed Gorsuch in 2017.

McConnell, in 2016, argued that it was unfair for Obama to nominate a replacement Scalia during a presidential election year. But when Justice Ruth Bader Ginsburg died in 2020, McConnell had no problem ramming Trump’s nominee, Barrett, through the U.S. Senate.

“Five judges — Alito, Barrett, Gorsuch, Kavanaugh, and Thomas — supported overturning Roe,” Litt writes. “The remaining four did not. The only reason these numbers were not 5-4 in the other direction is that Ruth Bader Ginsburg died while President Donald Trump was still in office and a conservative nominee was rushed through the Senate. If she had been replaced by President Joe Biden instead — or if, four years earlier, Republicans hadn’t broken with Senate tradition and refused to allow President Barack Obama to fill an open seat on the Court — conservatives would not have been able to overturn Roe. Women were deprived of a right they had held for nearly 50 years not because jurisprudence evolved or judges gained a new understanding of the real-world impact of a past decision, but because one judge was swapped for another.”

When the Dobbs decision was handed down, Thomas urged the Court to “reconsider” protections for gay rights (Lawrence v. Texas, Obergefell v. Hodges) and contraception (1965’s Griswold v. Connecticut).

“In the aftermath of Dobbs,” Litt observes, “businesses and governments are trying to figure out which rights the Court will un-guarantee next. Same-sex marriage? Same-sex intimacy? Birth control? Free and fair elections? Will they erase long-standing laws allowing the American people, through Republican governance, to fight climate change, promote public safety, or preserve the separation of church and state? We have only begun to reckon with what it means to live in a country whose most powerful judicial body no longer believes in judicial restraint.”

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