Context

On May 5, 2022, the current affairs site politico.com obtained the draft opinion of Justice Samuel Alito, apparently speaking for the majority of the judges of the Supreme Court of the United States (SCOTUS) overruling Roe v Wade (1973) and Planned Parenthood v Casey (1992). These two previously decided cases enable women in the US to access abortions, albeit with some restrictions.

Background of the US Supreme Court

• SCOTUS was established on March 4, 1789.
• The almost 225-year-old court, founded to interpret the American constitution that was adopted in 1789, has a long history of being an ideologically divided court, hearing deeply contentious political issues.
• Within both the polity and law in the US, no issue is as emotive and divisive as matters related to abortion.
• At present there is the 6-3 divide in the SCOTUS, with the conservatives constituting the majority.
• Paying attention to the public opinion: Conservative judges also frame the regulation of abortion as a state legislative rights issue, giving enormous weight to the apparent public opinion within those states.

Paying attention to the public opinion

• In the draft opinion that was leaked, after being circulated to the other eight judges of SCOTUS, Justice Alito writes “We hold that Roe and Casey must be overruled,” adding, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
• Here is how the issue is initially framed: Legislatures in states must be able to adopt laws on abortion as they see fit.
• The justification offered is in the context of the legitimacy of such laws being made by the will of the people, through their representatives.
•  Justice Alito clearly sees this an issue for the legislature to decide based on the will of the voters.

Why public opinion is not a legitimate parameter for adjudicating issues of rights

• Against the separation of power: Across jurisdictions, in the constitutional scheme of separation of powers, the executive, legislature and judiciary are expected to play different roles.
• The executive to govern using the rule of law, the legislature to make law and the judiciary to ensure that those laws are in consonance with constitutional values.
• The introduction of public opinion and deference to the legislature as a valid basis for adjudication by constitutional courts leads to extraordinary conclusions.
• The virtue of constitutional courts is that they are expected to be insulated from public opinion.
• In that regard, they are freed from the vagaries of the will of the voters and enjoy the quiet introspection and justification through legal reasoning that the law creates space for.

Conclusion

The notion that constitutional courts should take  the will of voters into account is at odds with the understanding of courts elsewhere, like in India.

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