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The threat to Roe v. Wade, and to the Supreme Court's legitimacy

Roe v. Wade and the Supreme Court's legitimacy
Roe v. Wade and the Supreme Court's legitimacy 05:08

The security fence surrounding the Supreme Court is all you need to see to understand the gravity of what unfolded in Washington this past week. While the court may have decided a presidential election in the last quarter-century, and ruled on who could legally marry whom, the draft opinion leaked Monday night, suggesting Roe v. Wade could soon be overturned, elicited an emotional intensity reaching even deeper and more broadly across the country. 

Sen. Elizabeth Warren (D-Mass.) said, "The Republicans have been working towards this day for decades."

University of California, Davis Law professor Mary Ziegler said, "If you asked most Americans to name a Supreme Court decision, the vast majority will name Roe v. Wade. It's the only Supreme Court decision that's dominated Supreme Court confirmation hearings and presidential elections for decades."

Correspondent Jim Axelrod asked, "What is the legal reasoning underpinning the overturning of Roe v. Wade?"

"The legal reasoning comes down to the idea that the court says that there are only a limited subset of rights that are recognized in our Constitution, and those are ones that have been deeply rooted in our nation's tradition and history," said Ziegler.

Protests outside the Supreme Court following the leak of a draft opinion that would overturn the 1973 decision in Row v. Wade, and open up abortion to be made illegal in states across the country.  AP/Mariam Zuhaib

Which explains that intensity for so many wondering, if one long-established protection is overturned, what's next?

Ziegler said, "We don't know if this court is gonna stop with reversing Roe. We know that there are at least some justices on the court who would like to reverse a whole variety of other decisions, on issues from criminalizing same-sex sex to banning same-sex marriage."

Axelrod asked, "Somebody who says to you, 'Relax, this isn't a slippery slope,' what do you say to them?"

"Well, I say it's unpredictable," she replied. "And I say that if you had spoken to many Americans five years ago and said Roe v. Wade would be overturned in Amy Coney Barrett's first abortion decision on the Supreme Court, they would have said, 'Well, that's ridiculous, right? That's politically unnecessary and risky for a court [whose] reputation has already been damaged.' And yet, here we are."

Jeffrey Rosen, president of the non-partisan National Constitution Center, said, "Everyone saw coming the possibility that the court might overturn Roe by a 5-4 vote. I certainly didn't see coming that the decision was gonna leak!"

Rosen won't take a side on what the draft says, but he's withering in his criticism of how we found out: "The court's internal deliberations are its most sacrosanct product, and it's impossible for a court to function if early drafts leak," he said.

For Rosen, the leak – and who did it – is no sideshow distraction from the main issues; it's a grave threat to how the court works, in private, so justices have room to recast, rework, and revise their opinions.

Rosen said, "There have been many motives that have been bandied around [for the leak], but one is that after five justices voted to overturn Roe v. Wade, Chief Justice Roberts is now trying to convince some of them to change their mind and to join him in a more moderate opinion. The leaker is trying to make it harder for any swing justices to peel off and change their minds."

Wanting to end the court's highly-partisan era often traces back to hearings for conservative Judge Robert Bork, nominated for the Supreme Court by President Ronald Reagan. On July 1, 1987, Sen. Edward Kennedy, a member of the Senate Judiciary Committee, spoke in opposition to Bork's nomination, saying, "Robert Bork's America is a land in which women would be forced into back alley abortions."

Rosen said Roberts' mission has been to broker opinions that reflect consensus, favoring 8-1 decisions so much more than 5-4. "Chief Justice Roberts said, 'We've gotta be narrow. We have to be modest. We have to be incremental, or we're gonna run the risk of a tremendous threat to our legitimacy,'" he said.  

But that's the opposite of where we find ourselves this Sunday morning, with the court quite possibly close to an expansive sweeping decision that will overturn a protection that's been in place for half a century – one Americans feel strongly about.

"The court has historically not been that untethered from what people tend to think," said Professor Ziegler, "especially when the court is inserting itself into virtually every major issue of the day, from guns, to affirmative action, to abortion, to the rights of LGBT people, to voting rights, to the regulation of climate change. I mean, the court is literally in every conversation we're having, and it's operating in ways we haven't seen in the recent past."

But as Americans have repeatedly learned the last few years, the recent past is no longer the best guide to how we'll function in the future. 

Said Ziegler, "This will be something that professors of constitutional law, and indeed professors of any kind of law, will be talking about, probably for more than 100 years from this conversation."

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Story produced by Alan Golds and Mark Hudspeth. Editor: Carol Ross. 

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