https://www.wsj.com/articles/a-supreme-court-for-the-constitution-originalism-dobbs-abortion-religious-liberty-11656711597?mod=opinion_lead_pos1
A funny thing happened on the way to the supposedly partisan Supreme Court finishing its term: It ruled for the Biden Administration on immigration. Somehow that case isn’t making the dastardly hit list of those eager to declare that the Court is now “illegitimate,” but the Justices applied the law regardless of the policy and decided for the executive branch.(See nearby for elaboration.)
This isn’t a partisan Court looking for preferred policy outcomes. It’s a Court that hews to the tenets of originalism, with different shades of emphasis by different Justices. The Court’s jurisprudence is focused more than anything else on who under the Constitution gets to decide policy, not what that policy should be.
This is the main reason Democrats and the press corps are furious about the Court’s decisions. For decades they have counted on a majority of Justices to deliver or bless the policy results they want: on abortion, voting rights, healthcare, racial preferences, climate and economic regulation. You name it, the Court found ways to deliver it with balancing tests, trimester analysis, and the discovery of unenumerated rights between the lines of the Constitution’s text.
For decades conservative critics have argued that the role of the Court should be different—supporting rights that are actually in the Constitution, but otherwise enforcing the separation of powers so each branch of government stays in its lane as defined by the Founders. With the arrival of three new Justices nominated by Donald Trump and shepherded to confirmation by GOP Senate leader Mitch McConnell, that Court has arrived.
The result is the opposite of judicial imperialism. In the Dobbs abortion case, the Court is trying to extricate itself from abortion policy debates. As Justice Brett Kavanaugh put it, “the Constitution is neutral on the issue of abortion.” Policy will now be set by legislators in the states as informed by voters, subject to a low-level of legal review known as the “rational basis” test.
The political result may be surprising. The right-to-life movement now must persuade voters across 50 states, and most voters favor some limits on abortion but not an outright ban. If Republicans sound like moral scolds and can’t make their case with compassion for women, they will lose the debate. If Republicans seek a national ban on abortion via Congress, the Court could strike it down. The Court majority in Dobbs has invigorated democracy and federalism.