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BU professor: Current SCOTUS shows 'atypical' pattern of restricting rights

Supreme Court
J. Scott Applewhite/ASSOCIATED PRESS
A detail of the West Facade of the U.S. Supreme Court is seen in Washington, Monday, March 7, 2011. (AP Photo/J. Scott Applewhite, File)

U.S. Supreme Courts of decades' past typically leaned towards expanding the rights of people. But the current court has repeatedly shown a willingness to restrict existing rights — on issues ranging from voting to abortion.

That's the analysis of Dr. Megan Remmel, a Bradley University political science professor. She recently spoke to Tim Shelley about the leaked SCOTUS draft opinion which would overturn the 1973 Roe v. Wade decision.

TIM SHELLEY: We've got a lot to talk about, honestly. But let's just start with the broad view. What's your reaction to the draft opinion that was leaked in Politico?

MEGAN REMMEL: I am less interested concerns about the leak part of it. There's always been a mysterious nature to the Supreme Court, they've very much as a norm like to operate behind the scenes. There's nothing requiring that. And so I personally would like more transparency. Is this maybe the best approach for it? Probably not. But I do appreciate getting more of an idea of how the sausage is getting made behind the scenes, even if the justices don't like that.

But this is, from a policy perspective, and from a constitutional law perspective, massive. I truly cannot describe how huge a change this would be if this decision, or something that looks a lot like it is what's handed down at the end of June.

A lot of times when precedent is overruled, it's precedent that's being overruled, because that precedent had restricted rights. So one of the examples that's even brought up in the in the draft is Plessy v. Ferguson, the case that ruled "separate but equal," and it's fine to segregate the races, and that getting overturned in 1954, with Brown .v Board of Education saying separate is inherently unequal. But Brown v. Board of Education was granting rights that had not been granted before. And Roe v. Wade was also granting rights that had not been granted before.

And so you're getting this pulling back of rights, you're getting this loss of rights, both in concerning Roe v. Wade, but the Roberts Court has also been really active on restricting voting rights. So this Court has just been pulling back on rights. And that's more atypical than what we've generally seen in the past.

There's been a lot of talk about some of (Justice) Alito's reasoning in that opinion. Does he veer a little bit more into policy versus, you know, other aspects, perhaps, of what a justice traditionally goes upon?

Sam Alito has never claimed to subscribe to a particular judicial philosophy. Whereas somebody like Neil Gorsuch has always framed himself as being a textualist.

That's not something Sam Alito has done, which is, I guess, a good thing and a bad thing in that all judges are political. There's no such thing as a nonpartisan, unbiased judge at any level. That's just a fantasy. They're still humans; they still have personal preferences. It may be implicit, but it bleeds into what they do.

So there's a bit of an honesty, to not subscribing to a judicial philosophy. But then it does make it very easy to cherry pick your legal rationale, the cases that you choose to cite, to get you to the endpoint that you want, and sort of don't have a ton of regard for how you get to that point that you wanted.

I think some people who read this opinion, they got concerned that it's setting up a slippery slope, that we might see the court eventually move on things like same-sex marriage or other other rulings that have been precedent up 'till now.

The American legal system is based on the idea of precedent. And so when a Supreme Court decision is handed down, there's a legal rationale to it. And that legal rationale is supposed to be implied in later cases, even if those cases aren't explicitly about the same topic area.

So the rationale that comes out of Roe v. Wade is partly based in an understanding of the 14th Amendment, and that 14th Amendment logic has been applied in later cases.

The way that I tried to think about this as like a Jenga tower, the game was the blocks, that if you take Roe v. Wade out, is the foundation of all of these other cases that have used the same legal rationale going to immediately fall? No. Has it gotten a lot shaky here and could lead to the tower falling? Yes.

So if you take away this legal rationale about this inherent right to privacy, in Roe v. Wade, the cases that come after it that use that same legal rationale are at stake. And there are several cases that came before Roe v. Wade that were kind of the foundation blocks to getting to Roe v. Wade. So (if) you take Roe v. Wade away, you might be able to move back earlier into the timeline and undo one of those cases, as well.

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