https://www.businesstimes.com.sg/opinion/the-us-supreme-court-an-agent-of-political-polarisation
The US Supreme Court: An agent of political polarisation?
LEON HADAR Tue, Jun 28, 2022
The US Supreme Court, one of the few American institutions that have enjoyed wide public approval, has recently emerged as one of the most powerful forces advancing the agenda of the American political right.
LET'S go first to the good news: On a Thursday morning, June 23, 2022, the US Senate made history by passing a bipartisan gun control bill, the most significant gun safety measure in decades.
Overcoming deep partisan divisions and at a time when conservatives have been pushing to expand gun rights, Democrats and Republicans responded to a series of recent mass shootings, reached a consensus and made a deal despite opposition from the gun lobby and its right-wing supporters.
And now let’s go to the bad news: Twelve hours earlier the US Supreme Court delivered a major blow to gun regulations, ruling in a 6-3 decision that Americans have a right to arm themselves in public and striking down state laws that placed limits on the right to carry arms outside the home.
In what amounts to a historic turn of events, the US Supreme Court, one of the few American institutions that have enjoyed wide public approval, has emerged recently as one of the most powerful forces advancing the agenda of the American political right.
Indeed, the next Friday, the Supreme Court sent shock waves across the entire American political universe in a stunning (yet not unexpected) ruling to eliminate the constitutional right to abortion after 50 years and allowing the states to ban the procedure, winning applause from conservative Republicans and drawing condemnations from liberal Democrats.
By overruling in a 6-3 decision the 1973 Roe vs Wade ruling (aka “Roe”), the court upheld a Mississippi law that bans abortion after 15 weeks of pregnancy, about two months earlier than what has been allowed under Roe.
As the majority of the Supreme Court Justices put it, their decision amounted to a correction of a historic mistake, arguing that the US Constitution didn’t provide for a right for abortion and that this political issue should be decided by the people’s elected representatives.
Or to put it differently, the court’s conservative majority insisted that the Roe decision was wrong when it recognised the constitutional right for abortion, a position that has been upheld since then, including by the Supreme Court.
The ruling means in practical terms that the question of the abortion legality will now have to be decided by the states, with some (like Mississippi and Alabama) restricting it, while others, like New York and California, committed to protecting it.
But describing the court’s ruling as a legitimate move to reverse a supposedly constitutional mistake misses what is perhaps a more important point: The decision amounted to the political blow to the Democrats and many other Americans who regard the right or the choice of a woman to have an abortion as grounded in core liberal principles and that sees the rejection of that right as a reflection of conservative cultural positions based on religious beliefs.
From that perspective, the court’s ruling should be seen more as part of a political debate than a discourse over the US Constitution.
Hence, is it a coincidence that all the states that want to ban abortion, including Mississippi and Alabama, are Republican “red” and were all carried by former President Donald Trump in the 2020 election? And vice versa -- that all the states that protect abortion rights are Democratic “blue” and voted for President Joe Biden in the last election?
Similarly, all the Justices that ruled to overturn Roe were nominated by Republican presidents, two of them by former President Trump, while the Justices who wanted to uphold Roe were all put in the court by Democratic presidents. In fact, if the late Justice Ruth Bader Ginsburg, who had cancer in the last years of her life, had vacated her seat during the presidency of Barack Obama, he would have nominated a liberal judge who, together with the three other liberal Justices, would have been able to counter the power of the conservative ones in the court.
But as the debate over the Supreme Court ruling and abortion rights ensues, it’s important to remember the following: For most of the time that it has existed, the nomination of the Justices to the Supreme Court was not seen as part of a political fight.
Indeed, the Justices were nominated based mostly on their qualifications and they didn’t necessarily follow a political line when they served in the court.
Hence Republican President Dwight Eisenhower nominated a California Republican, Earl Warren, as Chief Justice in 1953. Chief Justice Warren turned out to be a major proponent of the historic civil rights legislation advanced by Democratic presidents in the following years.
Similarly, the Roe vs Wade ruling was upheld in 1989 by the Supreme Court, including by three conservative Justices nominated by Republican presidents -- Sandra Day O'Connor, Anthony M Kennedy and David H Souter, who concluded that Roe established a “rule of law and a component of liberty we cannot renounce”.
In a way, the three Republican Justices reiterated a commitment to a legal principle that has been sustained by many conservatives -- precedence, the notion that the Justices should not rush to change the established legal status quo, a move that could ignite unnecessary legal problems and political tensions.
Those Republican Justices made their decision when the nation was actually more divided over the issue of abortion. Since 1989 Americans have expressed more willingness to reach compromises over the issue. Opinion polls suggest that a majority now supports Roe vs Wade and that even those who oppose abortion are willing to accept it in some cases (in the same way that those who support termination of pregnancy oppose late-term abortions).
In fact, Chief Justice John Roberts attempted to find a middle ground, suggesting that the court could uphold Mississippi’s prohibition of abortion after 15 weeks, without overturning Roe which, as he explained, provides a "reasonable opportunity to choose abortion for any woman who wants it”.
But the other four conservatives Justices refused to join him in his search for moderation and compromise, the kind that is endorsed by a majority of Americans, and decided instead to take the radical step of overturning Roe. And they did that at a time of growing partisan polarisation and on the eve of a midterm election.
Not only would the decision lead to messy legal entanglements, as pregnant women in red states are forced to travel to blue states in order to have an abortion. It also raises concerns that an aggressive majority in the Supreme Court would attempt to overrule other controversial decisions like on same-sex marriages, and that some red states would try to deny access to contraception and morning-after pills, not to mention stoke the rising political temperature in the country.