"Read the small print" is sound advice before buying car insurance or signing for a reverse mortgage touted in a late-night infomercial. It is also the right approach for making sense of Whole Women's Health v. Hellerstedt, the momentous abortion rights case from Texas now before the Supreme Court. The outcome will help determine whether safe and legal abortion care will be available to poor and disadvantaged women in large swathes of the country and could shape the real world contours of women's reproductive freedom for years to come. But it is apparent from the background of this legal clash (pertinent small print, if you will) that the case implicates a principle that transcends the immediate abortion controversy, one central to the rule of law -- namely, the truth and integrity of judicial decision-making. Including, I'd add, by the Supreme Court itself.
Time was, left-leaning legal scholars and commentators called for the courts to actively enforce individual rights against overbearing majorities. Today, some among them would prefer that judges largely stay out of the way--and they're worried that an increasing number of conservatives do not agree with them.