Politicization of the Supreme Court: American democracy in peril?

The Supreme Court of the United States is set to overturn the stop Roe v. Wade. Wade of 1973 which guarantees the right to abortion at the federal level, according to the draft of the majority decision written by the conservative judge Samuel Alito which leaked and was published on the site Political. If it is a provisional version, its authenticity has been confirmed by the President of the Court and the excitement is considerable.

This questioning of almost half a century of case law is the result of decades of Republican Party battles, motivated in particular by his conservative Catholic and evangelical electorate. It is to Donald Trump that these voters will owe their victory since it was under his presidency and thanks to the appointment of three conservative judges that the Court lost its progressive majority (remember that the judges of the Supreme Court are appointed for life by the president and confirmed by a vote in the senate).

First most visible effect: between 23 et 26 out of 50 states would be likely to prohibit abortion and only 16 States legally protect this right. But this decision could have many other social, legal and political consequences.

The "rule of precedent" undermined

One of the issues at the heart of the legal battle is the "rule of precedent" (stare decision), which wants the previous judgments to set a precedent. A rule which allows the stability of the law in the countries of common law.

Of course, the Supreme Court has overturned dozens of precedents in the past, such as Brown v. Board of Education, (1955) which invalidated the decision Plessy v. Ferguson (1896), cornerstone of the segregation laws of the Southern states.

Overturning a precedent is, however, extremely rare: this was the case for barely 0,5% of Supreme Court judgments since 1789 and these reversals have generally been motivated by the fact that the law is “unenforceable or no longer viable,” particularly because of “changes in social conditions”. Even when a right is not specifically mentioned in the Constitution, it is its “deep-rootedness in the history and tradition of this nation” that makes it a right guaranteed by the Fourteenth Amendment.

Yet it is precisely this “deep rootedness” that conservative judge Samuel Alito challenges in his preliminary draft decision. However, in 1992, while considerably modifying the right to abortion, the judgment Casey precisely noted the precedent value of Roe v. Wade. Wade, arguing that "women's lives have been changed by this decision", relying on "the need for predictability and consistency in judicial decision-making", and the fact that "the Court would lack legitimacy if it changed frequently its constitutional decisions.

This decision could therefore ultimately call into question a set of rights such as access to contraception or marriage for all, especially since the Roe v. Wade relies on the right to privacy, not the right to sexual equality, as the lamented the very progressive judge Ruth Ginsburg. Although Judge Alito insists that this decision concerns only abortion, which, according to him, alone involves "a critical moral question" related to the "potential life" of an "unborn human being," the legal scholars are worried.

United States: the Supreme Court, an institution that shapes American society (France 24, September 24, 2020).

Against public opinion?

A large majority of Americans are in favor of abortion in most cases.

Percentage of Americans in favor (in dark brown) or against (in beige) that abortion is legal, from 1995 to 2021.
Pew Research Center

Unsurprisingly, however, there is a line of fracture which has deepened in recent years between a right still mostly against and a left increasingly in favor of abortion.

Share of the population considering that abortion should be legal according to political affiliation (Democrat or approaching in blue and Republican or approaching in red).
Pew Research Center

At the same time, as shown by a Gallup poll, a growing number of Americans consider the Court to be too conservative, and only 40% of the country's people approve of its action by the Court, which represents "the worst opinion that the institute has measured in its polls on the Court in the last two decades”.

Trust in the judicial institutions of the country.

Worse still, according to a Quinnipiac poll, a majority of Americans of all political persuasions believe that the Court is primarily driven by partisan issues.

The result of a political strategy

If, as the President of the Court, John Roberts, the Court cannot base its decisions on the fact that they are popular, its authority nevertheless rests on a legitimacy linked to the fact that the public perceives its decisions as emanating from respect for the principles of law and not from political positions. and supporters who guide the judges.

Not only is the subject of the right to abortion in the United States eminently political, but the confirmation of the most conservative judges was essentially made around this question on partisan lines. It is the result of a long-term strategy by the Republicans, who did not hesitate to undermine the democratic standards of the functioning of institutions in order to politicize the entire judiciary.

For example, in 2016, Senate Majority Leader (Republican) Mitch McConnell refused to organize a Senate vote on President Obama's Supreme Court candidacy of progressive Merrick Garland to replace Antonin Scalia. , died in February 2016. Pretext given by McConnell: 2016 was a presidential election year. Which will not prevent this same McConnell from voting on the confirmation of President Trump's nominee, Amy Coney Barrett, in 2020, also in an election year.

Who is Amy Coney Barrett, Trump's chosen judge? C in the air, October 15, 2020.

A majority of “minority” judges

It's debatable that three of the Court's conservative justices - Gorsuch, Kavanaugh and Coney Barrett - were appointed by a president who got some 3 million votes less than his opponent.

Moreover, these judges are doubly "minority", since they were confirmed by a majority in the Senate (in terms of seats) which in fact represents a minority of voters in terms of votes.

Indeed, as there are two senators per state regardless of its population (Article I, Section 3 of the Constitution), the least populated, the most rural and generally the most Republican states are overrepresented compared to the more populated states. , urban, and mostly Democrats. Thus, California (Democrat), almost 40 million inhabitants, has two senators, just like Wyoming (Republican), with less than 600 inhabitants. This trend has become more pronounced in recent years: in 000, the average Republican voter had 1980% more power in the Senate than the average Democratic voter, compared to 14% today.

This differential is not negligible: it was 15 million voters for the confirmation of Amy Coney Barrett, and approximately 22 million for those of Gorsuch and Kavanaugh, the first two Supreme Court justices to be appointed under Donald Trump.

This is a recent phenomenon, the first occurrence of which dates back to 1991, with the appointment of Clarence Thomas, openly opposed to Roe v. wade.

In fact, of the six conservative Supreme Court justices, the five who are most likely to challenge Roe v. Wade are "minority judges", as seen in the following graph (in gray the positive vote of confirmation by number, and in black the negative vote).

Supreme Court Justices.
US Senate

The challenge of the survival of the Court and of democracy

By qualifying Roe v. Wade. Wade of “abuse of judicial authority”, “obviously erroneous from the start” which “short-circuited the democratic process”, Judge Samuel Alito takes up an old adage of conservatives who are fundamentally suspicious of federal power. While emphasizing that it does not pass a substantive judgment on the legality of abortion, it refers to the elected representatives of the States and to democratic sovereignty.

Noting that states were adopting increasingly restrictive abortion laws, explicitly inspired by the court's new conservative majority, the Judge Sotomayor expressed concern about whether “…this institution will survive the stench created in public perception by the idea that the Constitution and its reading are nothing but political acts. […] If people really believe that everything is political, how will we survive? How will the Court survive? »

In the long term, the question of the Court's legitimacy goes well beyond the question of the right to abortion, or the protection of minorities by law. Let us not forget that, during the presidential election of 2000, it was the conservative majority of the Supreme Court that gave victory to GW Bush, stopping the recount of votes in Florida.

More recently, in 2019, conservative justices ruled that federal courts have no no power to hear disputes relating to partisan redistricting (gerrymandering).

Let us remember, finally, that Donald Trump and a majority of Republicans continue to claim that the 2020 election was stolen from them, and that Joe Biden is an illegitimate president.

What would happen if, the next time around, the presidential candidate not only rejects the verdict of the ballot box, but also a key state dominated by his party refuses to validate the results? How, then, could a delegitimized Supreme Court settle the ensuing constitutional crisis?

In the shorter term, the question of the right to abortion should be an issue in the mid-term elections next November. In any case, the Democrats hope that this will make it possible to put the question of inflation, mobilize their electorate, even independent voters and thus limit an announced failure.

Jerome Viala-Gaudefroy, Reader Assistant, CY Cergy Paris University

This article is republished from The Conversation under Creative Commons license. Read theoriginal article.

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