Note: The views and opinions expressed in blog/editorial posts are those of the author. They do not reflect the views or opinions of Misbar.
In 1997, both Republican and Democratic voters overwhelmingly approved of the Supreme Court’s function. By 2019, Republican voters still held the court in similar regard, yet only a minority of Democratic voters approved of the court. This suggests that the Supreme Court is acting in an ever more partisan manner. Recent Supreme Court decisions, such as those upon abortion rights, appear to reinforce this argument. But recent comments from the Supreme Court Justices themselves attempt to refute this argument.
On September 12th, Justice Amy Coney Barrett denied that the Supreme Court is made up of “partisan hacks.” She elaborated that the judicial philosophies of the judges should not be equated to the beliefs of political parties. On the very same day, her colleague, Justice Stephen Breyer, appeared in a TV interview, in which he discussed his book, which is entirely about how political partisanship is threatening to undermine the public’s confidence in the Supreme Court. The two appear to be consistent in how they describe their duties, yet their messages are contradictory. Justice Barrett stated the following: “Sometimes, I don’t like the results of my decisions. But it’s not my job to decide cases based on the outcome I want.” Justice Breyer stated this: “I’m there for everybody. I’m not just there for the Democrats. I’m not just there for the Republicans. And I’m not just there because it was a Democrat who appointed me.”
With statements like these, it sounds as if the Supreme Court should have no difficulty in unifying in making decisions that align with the majority of the American public’s opinions. But anyone who has been paying attention to current events knows that that is not the case. Polls have consistently shown that a clear majority of Americans support legalized abortion, especially within the first 13 weeks of pregnancy, the first trimester. But the Supreme Court recently allowed Texas’s extreme six week abortion ban to pass into law. If anything, the justices are not doing what Breyer or Barrett claim they should do. By upholding a law that breaks not only with public opinion but with decades of precedent, the Supreme Court is clearly acting in a partisan fashion.
In fact, comparing the passage of abortion rights in the 1970s and the repeal of these rights in 2021 illustrates how the Supreme Court should reflect public opininion, and how it isn’t in the present day. When the right to abortion in the first trimester across America was passed in the Roe vs Wade case in 1973, six of the nine Supreme Court justices had been appointed by Republican presidents, namely Justices Burger, Brennan, Stewart, Blackmun, Powell and Rehnquist. Five of these six people allowed abortion to become the law across the U.S.. And one of the two justices who opposed the passage of Roe vs Wade in 1973 had been appointed by a Democratic president. In 2021, as in 1973, six of the nine justices who were incumbent when the Texas abortion ban passed into law had been appointed by Republican presidents.
The five Republican justices who allowed Roe vs Wade to pass into law had assumed their positions from nominations by presidents who had many voters who were pro-life, Nixon and Eisenhower. But as Oxford University Press highlights, the Republican-appointed justices recognized that the feminist movement and sexual revolution was larger than the Republican base and more reflective of society overall. In 2021, only one Republican judge decided to go against his appointee’s base and side with the majority public opinion.
The media landscape of the U.S. has changed significantly since 1973. In the 70s, technological innovation and regulatory loosening brought a greater variety of broadcasting to the nation. This eventually allowed people such as Ted Turner and Rupert Murdoch to launch networks such as CNN and Fox News, which have broadcast to specific political audiences at an increasing rate over the decades. Newspapers have followed suit. And social media has only made partisanship even more extreme.
Could partisan media be fuelling Supreme Court decisions that pander to political bases and not society at large? A 2019 study of 783 newspaper articles found that just 4% of abortion-related stories discussed the personal experiences of women who chose to get abortions. Instead, language that personified fetuses was much more commonly featured. Additionally, facts about the commonality and safety of abortion barely appeared in those articles.
Others have made a case that mainstream media shying away from a discussion of abortion has helped to propel the pro-life minority. In 2016, a KQED article stated the following about scripted TV shows: “Plotlines in which abortion is not considered as a reasonable option reinforce the spectacle and stigma around the procedure.” And there is evidence that in the past, abortion storylines in scripted TV have impacted society’s stance on abortion rights. For instance, a few months before the Supreme Court passed Roe vs Wade, the television show Maude aired a two-part episode called “Maude’s Dilemma,” in which the title character learns that she has an unwanted pregnancy. Eventually, she and her husband decide to terminate the pregnancy. Unsurprisingly, the episode was controversial when it aired. But showcasing the issues facing a pregnant woman who decides to get an abortion appears to have had an effect upon society, which, indirectly resulted in action by the Supreme Court.
Since then, the entertainment world has become significantly more competitive. In 1992, The Chicago Tribune stated this about Maude’s Dilemma: “In the current political and economic climate, with the networks besieged by pressure groups and afraid to lose even more of their viewers to home video and cable TV, Maude, like Murphy Brown, would probably have the baby.” Those words were written before the internet and before streaming services. Present day prime-time TV shows have even more competition. Therefore, the KQED article’s argument that the avoidance of abortion in media causing the pro-life movement to gain ground appears to be relevant.
In the present day, entertainment that attempts to appeal to a large audience is backing away from controversial subject matter. News articles are minimizing the experiences of women who choose to terminate their pregnancies in favor of humanizing fetuses. In this environment, a Supreme Court with six Republican-appointed justices has repealed a right that was approved by a previous Supreme Court with six Republican-appointed justices.
Of course, the abortion rights case is just one example of how an increasingly partisan Supreme Court is enacting ever more extreme laws. In 2008, for the first time, the Supreme Court interpreted the Second Amendment to allow for much stronger personal freedoms in gun ownership. Partisan media and cautious media likely played a similar role in this occurrence, as it did abortion rights. An analysis of media coverage after 69 mass shootings between 1999 to 2017 showed that discussions of gun control after these shootings consistently result in increased gun purchases. With data like this, it’s easy to see how a partisan Supreme Court could similarly decide to push back against calls for gun control.
The similarity of Justices Barrett and Breyer’s statements on the 12th of September may offer a glimmer of hope. Three of the Supreme Court’s current justices are still recent appointees, who may change their minds in the future. In the past, Supreme Court justices appointed by Republicans have changed their minds, even regarding abortion rights. And analyzing how the producers of Maude’s Dilemma were determined to make their story shows how highlighting the importance of abortion to a mass audience is possible. Rod Parker, the producer of Maude’s Dilemma, stated that at the last minute, CBS said that they would not finance the production of the episodes. In response, another of the show’s producers, Norman Lear, responded that unless they did fund the episode, they would no longer make the program at all. The network relented, and Maude’s Dilemma aired across the U.S. A few months later, abortion in the first trimester became the right of every woman in the country.
