Litman: The Supreme Court returns on Monday. How far from the mainstream will Trump’s appointees take us?

The nine justices of the Supreme Court return to their public stage Oct. 4, the first Monday in October, which traditionally marks the beginning of the 10-month court term.

We don’t know much about the new majority, particularly the three Trump justices. In a few 5-4 decisions, these appointees and stalwart conservatives Samuel A. Alito Jr., and Clarence Thomas, demonstrated their willingness to defy the incrementalist, coalition-building instincts that Chief Justice John G. Roberts Jr. has instilled and to turn the court to its right.

Now, the question is: What hard will it be to turn the court in the right direction? The Trump justices are all over 50, so the answer could be a long time coming.

Dobbs is the most important case this term. It requires the court to review a Mississippi abortion statute that forbids nearly all procedures after 15 weeks. The law is flatly irreconcilable with the court’s repeatedly reaffirmed holding that the Constitution protects a woman’s decision whether to terminate a pregnancy prior to viability — about 20 weeks, under the current science.

The case will be heard in oral argument Dec. 1. It will be one of the most closely watched cases in many years. This is not only because of the significance of abortion jurisprudence for women and the nation. Dobbs, however, is as clear a sign of the intentions of the five conservative justices as we will likely see.

Before May when the court accepted the Mississippi case ,, the smart money was betting on Roe Vs. Wade’s survival for a variety of reasons.

First of all, the three Trump justices and Roberts assured the country they did not intend to overturn Roe when they sought Senate approval to be nominated to the court. They did it in such a way that it was difficult to prove their testimony had compelled them to support abortion rights. For the majority of Americans, this will sound like sophistry.

Second: All the justices know that Roe’s overturning would be a major blow to the court’s public standing, which is the true source of its authority. Already, according to a recent poll, about 40% of the country thinks it’s not doing a good job. The impending repeal of abortion rights would be just as devastating as Bush vs. Gore’s decision to give the 2000 presidency election to George W. Bush.

In reality, Roe’s destruction could make the justices “partisan hacks” in public opinion, which Justice Amy Coney Barrett argued and attempted to discredit in a speech in mid September at the University of Louisville’s Mitch McConnell Center. Roberts could be motivated to join Dobbs’ three liberals on the court by countering this characterization rather than having sympathy for abortion rights.

Republican office-seekers will not be very pleased with the court’s decision to uphold draconian Mississippi abortion laws and the more restrictive Texas statute. Anti-abortion-rights politicians have the freedom to rail against Roe and lament the fate for the unborn. Roe is the law of the land. However, a majority support abortion rights but oppose the strict restrictions in the new class. The GOP will suffer the real-world consequences if it overturns Roe.

For all these reasons, it seemed that Roe was safe in 2021. That is, until the court’s conservatives dropped a 10-ton weight on the other side of the scale simply by accepting Dobbs vs. Jackson Women’s Health Organization for review. Uniquely in federal courts, the Supreme Court has almost total control over its docket. It takes the cases it wants to hear — fewer than 100 per term out of a pool of 8,000 or so annual requests. It is absurd to believe that more than four justices — four being the minimum number required to hear a case — have reached out to the Mississippi statute to overturn it. They could have refused to hear it, which would have allowed the lower courts to make their decisions against it.

It makes sense that the law in Dobbs-vs. Jackson Women’s Health Organization would be upheld in some form. The simple truth is that Roe vs. cannot be eviscerated. Wade.

As the Supreme Court begins its new term, we need to be ready for a dramatic, but also tragic, assertion by the five new justices of their authority on Roe and other cases. They have the power and lifetime tenure to make the law their own, no matter how out of tune it might be with the majority of the country. It’s difficult to imagine them being so foolish, but it’s even harder to believe they won’t.

@HarryLitman

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