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Roe supporters deserved a more thoughtful Supreme Court opinion, Sarah Isgur says


Recent rulings by the Supreme Court said a lot, both in substance and in style. Written opinions on abortion, guns, religion and government regulation showed passionate disagreement. Justice Samuel Alito said he overturned Roe v. Wade because it was, quote, "egregiously wrong," and he questioned the motives of those who disagreed. This week, we heard Curt Levey of the conservative Federalist Society who said he supports the decision and understands its tone.


CURT LEVEY: Roe always frankly made me angry because it's such a made-up doctrine. And I have to assume that Alito and the others felt the same.

INSKEEP: Sarah Isgur has a different view of the tone. She is a lawyer and former Justice Department spokesperson in the Trump administration. She argues the abortion ruling and other recent court rulings make little effort to persuade those who disagree. Isgur calls attention to an opinion in a different tone. Also in the abortion case - Chief Justice John Roberts said, quote, "both the court's opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share." Why does that sentence speak to you?

SARAH ISGUR: I think it is both a problem that has plagued our legal system for a long time, but it's also plagued our politics as well - this idea that both sides have a relentless freedom from doubt. And yet our history is filled with people being so wrong about fundamental moral issues that it strikes me as weird, arrogant and naive, frankly, to be so sure that you're currently on the right side of every issue that you believe. And when it comes to judicial opinions, the Supreme Court has been on the wrong side of some of the most major questions facing our country throughout this 200-plus-year experiment that we've been running in self-government.

INSKEEP: Isn't Justice Alito, who wrote the abortion ruling, essentially saying, yeah, the Supreme Court has made mistakes, and I'm the guy who's correcting one?

ISGUR: Isn't it funny to always assume that the other people are Plessy and that you're Brown v. Board of Education? It seems just as likely. You know, Plessy was a 7-1 decision that held - upheld a Louisiana law that created separate but equal railcars for their railroad system. And seven justices had that relentless freedom from doubt that they were on the wrong side. One, John Marshall Harlan, dissented. And his dissent is famous. His portrait hangs in the conference that the Supreme Court justices today decide the cases in.

And so I just feel like all of us, whether you're a Supreme Court justice or sitting here talking today - there are issues in which we're in the seven on Plessy. And hopefully there are a few issues in which we're the one, that we're Justice Harlan, and we're seeing something more clearly than our culture or our friends. But to assume you know which is which is arrogant.

INSKEEP: Let's be a little specific here, if we can. What betrays that tone in Justice Alito's ruling?

ISGUR: It's not that Alito was overturning Roe. It was the words he was using to do it. And it almost points an almost snarky tone, that obviously Roe was wrongly decided, egregiously so, and that, frankly, those that disagreed about whether there could be a constitutional right to an abortion were being stupid or insincere was certainly the feeling that you left with reading that opinion. So many of the court's correct decision of overturn wrong decisions and, frankly, vice versa - to come to that with some humility, judicial humility, but also just humility for our place in history - all of that was missing for me.

INSKEEP: Now, Justice Roberts alleged the dissent in the abortion case also had that freedom from doubt. Now, I've been reading that. I do want to say it's not exactly the same as Alito's ruling. It's a different writing style. It's different justices. But do you see signs of that same overconfidence there?

ISGUR: Yes. I think it's always a little different when you're in the dissent, frankly. That being said, absolutely. To say that the history of the Constitution did protect the right to an abortion, obviously, and that overturning Roe is going to be remembered as obviously, you know, a stain on the Supreme Court's credibility and, you know, its trust as an American institution I also think shows a relentless freedom from doubt. I don't know why I would assume that either.

INSKEEP: Do you see this kind of overconfidence or overcertainty or hyperbole at the lower court level as well?

ISGUR: Absolutely. We see this at the lower court level. And it's increasing in its pace in how often we see it. And I think that that is due to getting rid of the judicial filibuster. It's really changed who wants to become a judge, who gets to become a judge and how they act once they're on the bench, especially in those lower court positions where, you know, everyone's always angling for a promotion of some kind. A district judge wants to be a circuit judge. A circuit judge wants to be on that shortlist for the Supreme Court. When we had the judicial filibuster, you always needed to get votes from the opposing political party of whatever president might appoint you. And so the people who were able, interested in those jobs were some that could make the case that they were going to get votes from that opposing party.

Once that judicial filibuster was gone, everyone went the exact opposite way because you didn't need votes from the other side. In fact, you were more at risk of losing votes from your own side - you know, whoever controlled the Senate and the presidency. And so I do think we see that in the lower courts, of people auditioning, if you will. And I think that's not good for the institution of the third branch of government.

INSKEEP: If a judge or a justice gives one of these fiery opinions completely free of doubt, that makes them sound like a partisan, are they undermining what is supposed to be a nonpartisan institution?

ISGUR: I think they're undermining the institution. I think they're undermining their fellow judges. And again, I think that they're acting within their incentives, unfortunately. I think that judges want to be heralded for their opinions, known for their judicial philosophy, which can be ideological on both sides. We've certainly seen that. And so the more we insulate judges, make them the least dangerous branch as they were described in the Federalist Papers, the better. Bring back the judicial filibuster. Stop talking about judges as purely ideological actors. And give credit where it's due on those opinions that are persuasive.

INSKEEP: Sarah Isgur, thanks so much. It's been a pleasure talking with you.

ISGUR: Thanks for having me.

INSKEEP: She is a lawyer and former Justice Department spokesperson in the Trump administration.

(SOUNDBITE OF AXEL KUHN TRIO'S "BEHIND THE SUN") Transcript provided by NPR, Copyright NPR.