Robert BarnesWASHINGTON - The Supreme Court embarks Monday on what could be an extraordinarily controversial term, with its justices on the defensive, its actions and structure under a political microscope and abortion - the most divisive issue of them all - taking center stage.
And a presidential commission on the Supreme Court, taking testimony on the court's power and proposals to add seats to the court, limit justices' lifetime tenure and require more transparency, is due to report to President Joe Biden next month. The push by Senate Republicans to confirm Justice Amy Coney Barrett before the presidential election last fall gave right-leaning justices a 6 to 3 majority, and the ambitious agenda in her first full term on the court sets the stage for remarkable change.There is a danger facing the court as well.
Opponents say it has forced those who want abortions to either continue an unwanted pregnancy or travel to other states to get the procedure, in effect nullifying the guarantee of Roe to choose abortion before the fetus is viable. "The catchy and sinister term 'shadow docket' has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways," Alito said in his speech at the University of Notre Dame. "And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution."
In the Texas case, Justice Elena Kagan practically accused her colleagues of abusing the court's emergency process and became the first justice to use in an opinion the "shadow docket" phrasing Alito found sinister. Lower courts have kept the law from going into effect, saying it clearly violates Supreme Court precedents that say states cannot impose an undue burden on those seeking abortions before fetal viability, generally considered to be around 22 to 24 weeks.
"Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law - and, in doing so, harmed this Court," her brief states. Specifically, it has left in place lower court decisions upholding state and local restrictions on the kinds of weapons permitted and restrictions on who can carry a gun outside the home, including some similar to New York's law.
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