The Supreme Court’s abortion decision Friday gutting 50 years of women’s abortion rights exploded the myth of a non-political high court.

Or a tribunal of ideological balance.

Three hard conservative justices appointed by former President Trump joined with two others of the right-wing bent to overturn the landmark Roe v. Wade decision providing constitutional protection for women’s reproductive rights.

Chief Justice John Roberts, a softer conservative, appeared to reluctantly join the 6-3 judgment but allowed the court did not need to flat-out kill the nation’s abortion standard if it had ruled only on the original Mississippi case seeking affirmation of the state’s 15-week limit on abortion.

No dice. It went way beyond that to revoke the constitutional foundation of abortion rights. Mississippi had amended its lawsuit once Trump became president and promised to nominate anti-abortion Supreme Court judges.

Robert’s off-key approach would not sit well with activists who had been pressing Republicans for decades to politicize the court with judges sympathetic to their anti-abortion stance.

They scored big when Trump took office. His nominations of Republicans Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett did exactly what he expected they would do – revoke Roe v. Wade.

Justices Samuel Alito and Clarence Thomas firmly embraced the trio. Now they had the power to accept a challenge to the abortion case and its 1992 progeny, Planned Parenthood v. Casey. The court could finally put an end to constitutional abortions – and the three Democrat justices could only dissent.

Republican appointees also dominated the 1973 Supreme Court that ruled state laws banning abortion were unconstitutional. Five justices, including Chief Justice Warren Burger, were nominated by Republican presidents (Eisenhower, Nixon and Reagan), and three by Democrat presidents (Roosevelt, Kennedy and Johnson).

Yet they voted 7-2 that women have a right to choose to have an abortion before fetus viability. One Republican and one Democrat dissented.

A different era, for sure. Supreme Court justices were primarily selected then for their judicial and legal expertise, and not their ideology or political leanings.

Associate Justice Stephen Breyer, who authored the dissenting opinion in Friday’s ruling, spoke to the politicization of the court.

“Mississippi – and other states, too – knew exactly what they were doing in ginning up new legal challenges to Roe and Casey,” said Breyer -- after Trump won the White House and the court turned into a right-wing majority.

“But as Mississippi grew ever more confident in its prospects, it resolved to go all in. It urged the court to overrule Roe and Casey. Nothing but everything would be enough.”

Breyer characterized the Supreme Court’s decision for ending the safeguards for “women’s freedom and equal station.” He also said it “undermines the court’s legitimacy.”

The court majority opinion disagreed. It said the Supreme Court had no constitutional authority to extend abortion rights to women in 1973, and the five Republican and two Democrat justices who did so then “damaged the court as an institution.”

“The court’s decision today properly returns the court to a position of neutrality and restores the people’s authority to address the issue of abortion through the processes of democratic self-government established by the Constitution,” wrote Justice Samuel Alito for the majority.

President Biden weighed in promptly even though presidents often restrain themselves in criticizing a co-equal branch of government. He called the majority decision “disappointing” and urged voters to register their objection at the polls by electing pro-choice local, state and federal legislators.

“The decision must not be the final word,” he said.

His plea may resonate. More than two-thirds of Americans wanted to uphold Roe v. Wade, according to a recent Wall Street Journal poll. The poll occurred after the leak of the draft opinion indicating the Supreme Court would overturn the 1973 decision.

The issue now shifts to the states, where politics will play a large role. Just like it did when the Supreme Court took up the issue.

Bill Ketter is vice president of news for CNHI. Contact him at

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