Supreme Court abets lawlessness in Texas abortion ruling

[Bloomberg]( Follow Us [Get the newsletter]( Get Jonathan Bernstein’s newsletter every morning in your inbox. [Click here to subscribe.]( Those of us who believe that Roe v. Wade was correct when it gave women a constitutional right to abortion in 1973 are obviously unhappy with the Supreme Court’s “shadow docket” decision to [de facto overturn it]( — or, as Dahlia Lithwick [put it]( in Slate Wednesday evening, Roe was “overruled this week, or nullified, or merely paused for a few million people.” But well beyond that: Procedure matters, and the ad hoc, unjustified procedure in this case — procedure that produced a [sharp and compelling dissent]( from Chief Justice John Roberts, who may eventually join a majority to destroy or overturn Roe — may have done as much to undermine the rule of law as anything we’ve seen in these last years of threats to constitutional government. It simply can’t be the case that state governments can eliminate established constitutional rights by structuring laws so that they must go into effect, thus robbing people of those rights, without the courts having any option of stopping them. That’s what Texas and a handful of judges have done in this case, and it’s wrong and it’s lawless even if Roe was incorrectly decided and the Texas law — which effectively puts abortions off limits after six weeks of pregnancy by giving citizens the power to sue anyone who “aids or abets” them — would eventually be upheld (for more detail, see Rick Hasen’s [reaction](). The courts are a political branch. They always have been. They’re supposed to be. That’s not a problem. But there are implicit but important rules about how they are political. Precedents can be overturned. They can be evaded so many times and so many ways that they no longer exist. They cannot simply be ignored. Justices can be partisan — there’s nothing new in that — but they need to cloak it in proper form, and proper procedure. They can’t simply say that they are ruling such-and-such a way because they are Republicans, or because that’s the outcome they want. Nor can they veil it so thinly that they might as well say so explicitly. Or, that is, they can — but in doing so, they behave improperly, and threaten not only the legitimacy of the judiciary but of the entire system. A five-Justice majority that essentially says they’ll do whatever they want because they have five votes and tough luck to anyone else — and yes, that’s basically what the Court did in this case and has done or come close to doing in others — is acting lawlessly, full stop. In doing so, these five Justices are inviting everyone else in the political system to simply do whatever they have the power to do, whether it’s overturning elections, packing or stripping jurisdiction from the courts, or [whatever else]( they can get away with. The rule of whoever has the votes can do whatever they want is not constitutional government. And that’s before we even get to the specifics of this Texas law, which undermines democracy and the rule of law in ways both very old (by in effect [threatening the full citizenship of women]() and novel, at least in this form (by [promoting vigilantism](). I fear for what comes next. 1. Rick Hasen on [lawyers who supported the attempt to overturn an election](. 2. Ronald R. Krebs and Jennifer Spindel at the Monkey Cage on [credibility and leaving Afghanistan](. 3. Dan Drezner on [the Biden national security team](. 4. Bloomberg’s Nancy Cook and Steven T. Dennis on the [internal Democratic Party maneuverings over the Federal Reserve Board](. 5. Barbara Rodriguez on the [next Texas abortion law.]( 6. Perry Bacon Jr. on the gubernatorial elections next year in [Florida and Texas](. 7. My Bloomberg Opinion colleague Amanda Little on [climate and food](. 8. And Lyman Stone makes the case for [vote-from-birth](. I’d prefer early teen voting, perhaps as young as 12, but I don’t think vote from birth is an oddball position at all; indeed, I think it’s the correct stance for Lockean liberals. Get Early Returns every morning in your inbox. [Click here to subscribe](. Also subscribe to [Bloomberg All Access]( and get much, much more. You’ll receive our unmatched global news coverage and two in-depth daily newsletters, the Bloomberg Open and the Bloomberg Close. Before it’s here, it’s on the Bloomberg Terminal. Find out more about how the Terminal delivers information and analysis that financial professionals can’t find anywhere else. [Learn more](. You received this message because you are subscribed to Bloomberg's Early Returns newsletter. [Unsubscribe]( | [Bloomberg.com]( | [Contact Us]( Bloomberg L.P. 731 Lexington, New York, NY, 10022