U.S. Supreme Court cases will test its credibility

On Oct. 4, the United States Supreme Court began a critical new term during which it will hear cases involving the constitutional right to abortion, expanding gun rights, the constitutionality of aid to religious schools and HIV discrimination.

Last week, the Fifth Circuit Court of Appeals overturned U.S. District Judge Robert L. Pitman’s ruling that halted Texas’ new law prohibiting abortions as early as six weeks in a pregnancy even in cases of rape and incest. The law that provides successful litigants with an award of $10,000 from an individual or entity that aids a woman in obtaining an abortion. 

“The highly charged docket will test the leadership of Chief Justice John G. Roberts, Jr., who lost his position at the court’s ideological center with the arrival last fall of Justice Amy Comey Barrett. He is now outflanked by five justices to his right (Thomas, Alito, Gorsuch, Kavanaugh and Barrett), limiting his ability to guide the court toward the consensus and incrementation he has said he prefers,” wrote Adam Liptak in The New York Times.

Essential to the Supreme Court’s power and its critical role in American Democracy is its credibility with the vast majority of Americans. As Jennifer Rubin of The Washington Post noted in a recent column, “A raft of recent polls shows that the Supreme Court has lost stature in the eyes of the public. Most dramatically, a Marquette University Law School poll finds the court’s approval dropping from 66% a year ago (and 60% as recently as July) to 49%.”

In many ways, the High Court’s erosion of legitimacy reflects deep divisions that are regrettably emblematic of contemporary America. In the aftermath of the egregious assault on the Capitol of Jan. 6, millions of Americans view that insurrection and the legitimacy of President Joe Biden’s election through a partisan lens. Essentially, numerous naysayers fervently believe that a result contrary to their personal preference could not have resulted from a fundamentally free and fair election.

A foundation of American law is its respect, reliance and adherence to precedent, and rulings in prior cases that allow judges and lawyers, as well as citizens, to comprehend what the law is. For society to function effectively, the public must be able to trust that judges follow established law as opposed to their personal preferences.

Now, in its current term, the Supreme Court will again confront challenges to its legitimacy. In Dobbs v. Jackson Women’s Health Organization, the court will hear arguments on a 2018 Mississippi law that bans most abortions after 15 weeks of pregnancy. 

For almost 50 years, the landmark case of Roe v. Wade has been a barrier to laws designed to limit women’s access to full health care. Now, the current Supreme Court may determine whether states may impose such harsh restrictions that women without substantial financial means may be denied abortion services available in other states.

Mississippi contends that the court should overrule Roe’s ruling that state’s may not ban abortions until a fetus becomes viable outside the womb. In 1972, in Roe, the court ruled that a woman’s right to privacy protects access to basic health services that includes an abortion. 

In New York State Rifle & Pistol Association v. Bruen, the court will decide if a New York law that restricts who can receive a license to carry a concealed firearm violates the Second Amendment. Lower courts have upheld the New York law imposing restrictions on concealed-handgun licenses. Now, the Supreme Court will decide if the state of New York has the power to impose restrictions. In 2008, in its landmark ruling in D.C. v. Heller, the court determined that the Second Amendment guarantees the right of individuals to own handguns. 

The court will also decide the case of Carson v. Makin. At issue in this case is a Maine law that prohibits the use of state funds for schools that teach religious content. In 2020, the court ruled in Espinoza v. Montana Department of Revenue, in a 5-4 decision that a Montana scholarship program that provided funds to religious schools is protected by the Constitution.

Legal scholars have often noted that only a small percentage of cases that reach the Supreme Court are fraught with controversy. Yet, such cases can rock the soul of America. On May 17, 1954, the Supreme Court ruled in Brown v. Board of Education of Topeka that segregated public schools violated the Constitution. While this decision may not seem controversial today, it created a firestorm of criticism when it was decided. In Brown, the Supreme Court overruled its 1896 decision in Plessy v. Ferguson that upheld the right of states to provide so-called separate but equal schools for Black Americans.

The current term of the Supreme Court represents an important crossroads for the ideal of Justice in America. As American Jews, Justice is sacred. “Justice, justice thou shall pursue,” is imparted in Deuteronomy 16:20. Rabbinic scholars teach that the Torah contains no surplus wordage. Repetition of the word “Justice” connotes a command from Hashem.

As our nation’s highest court grapples with cases of enormous import, let us pray that its judges be graced with sublime qualities of wisdom and reasoning so that they may render Justice in individual cases that will unite and not divide America.

A version of this editorial appeared in the Oct. 14 issue of the Jewish Herald Voice.

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