Last week, the Supreme Court’s conservative supermajority took centerstage as the court heard oral arguments in two cases challenging S.B. 8, the draconian abortion ban recently signed into law by Texas Republicans. This moment was the culmination of the Republican Party’s efforts to engineer a Supreme Court that would carry out their anti-reproductive freedom agenda.
Reproductive freedom has always been a cornerstone of a modern, constitutional democracy. An attack on reproductive freedom is an attack on our democracy, because our entire constitutional system is built to defend the rights and liberties of individuals to decide their own fate, practice their own faith, and build their families the way they see fit. It’s time for Congress to rebalance the ideological scales of our nation’s highest court by passing the Judiciary Act and expanding the Supreme Court.
In the year since Justice Amy Coney Barrett’s confirmation solidified the court’s ultraconservative majority, right-wing lawmakers and lower courts have accelerated attempts to roll back long-established reproductive rights as Coney Barrett’s addition to the court swung the ideological scale in their favor. Just this year, states have passed 106 abortion restrictions, underscoring the unprecedented tempo of attacks on abortion access and reproductive freedom. In fact, this year has seen the highest number of abortion restrictions passed since 1973, when the Supreme Court decided Roe v. Wade.
The extreme nature of the Texas law also brought attention to the Supreme Court’s increasing use of expedited rulings issued outside its typical process of hearing oral arguments and delivering opinions—otherwise known as the “shadow docket.”
Though the Supreme Court heard oral arguments on S.B. 8 last week, the court originally issued an order via its shadow docket refusing to strike down the Texas law back in September. Proponents of the Trump-stacked court rejoiced. At long last, the conservative supermajority was flexing its powers, restricting abortion access in extraordinary ways, and appears ready to deliver on the half-century-old promise of the Religious Right to abolish abortion access, and ultimately reproductive freedom overall in the United States.
Instead of striking down S.B. 8 outright, or affirming lower court decisions striking it down, the conservative bench is now taking up cases that it has no business hearing. The court should have struck it down unanimously back in September—after all, the fundamental right to privacy and reproductive freedom was already decided by the Supreme Court in 1973. Instead of striking down S.B. 8, or affirming lower court decisions striking down a Mississippi abortion ban, the Supreme Court will review these cases this year, a fact that should frighten all Americans.
The court ordinarily does not hear a case challenging settled law unless it intends to overturn settled law. In other words, the Supreme Court is now so ideologically skewed that it is unconcerned with its own precedent.
It’s not just reproductive rights on the chopping block—the court’s imbalance threatens political and bodily autonomy. The right-wing operatives trying to roll back voting rights are the same people trying to take away our reproductive freedom. They are the same people trying to strike down common sense gun laws that keep our families safe from harm.
There is no silver bullet, but there is an important solution: the Judiciary Act. The bill, which would add four seats to the bench, would rebalance our nation’s highest court so that the court is fit for its function. Right now, the Judiciary Act has over 37 co-sponsors in the House. Though the notion may fall on deaf ears covered by Senate Minority Leader Mitch McConnell’s (R-Ky.) hands, there should be strong bipartisan support for restoring balance to the court, and repairing its battered legitimacy—particularly when our freedoms and liberties are at risk.
Like each of these guardrails of democracy under threat from today’s Supreme Court, the impact of repealing these rights will not be equally felt by all. Educated, wealthy, white Americans will still be able to vote. They will still be able to access safe abortions. The rollback of these rights will disproportionately hurt marginalized people. Unless Congress rebalances the Supreme Court, the court will further deepen the divide between the two Americas—on voting rights, reproductive rights, and every other important question before the bench.
History has proven that democracies fail when they threaten the rights of the most marginalized people in their societies, and when they allow hand-picked oligarchs to run roughshod over people’s political and bodily autonomy. Democrats have the chance to change the course of history—to restore the rule of law, and build a just democracy. Now, all that remains to be seen is whether they will find the courage to protect our democracy.
Sonja Spoo is the Director of Reproductive Rights Campaigns at UltraViolet, a group which seeks gender justice. Brett Edkins is Managing Director for Policy and Political Affairs at the group Stand Up America.