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Overturning Roe v Wade shows the Supreme Court is not fit for purpose – a democracy cannot function like this

The i 27/06/2022 Michael Day
'In justifying Sunday’s ruling, though, the conservative justices appear to be tying themselves in knots,' writes Michael Day (Photo: AP/Gemunu Amarasinghe) © Provided by The i 'In justifying Sunday’s ruling, though, the conservative justices appear to be tying themselves in knots,' writes Michael Day (Photo: AP/Gemunu Amarasinghe)

A democracy’s institutions require the support of the people to function. Even the highest court in the land can’t operate in a bubble, blithely out of touch with public opinion. But after its radical decision to strike down a woman’s right to an abortion, the US Supreme Court finds itself in that dangerous territory.

A clear majority of Americans have consistently supported women’s abortion rights since 1973. According to a January poll from CNN, 69 per cent of Americans want to keep Roe v Wade intact. Regardless of this, the court’s radical right-wing majority felt able to reverse this fundamental right, which previous Supreme Courts have respected for decades.

The current Court, and the conservative legal movement behind it, know that its views are unpopular. When any messy cases crop up in the papers – say, a 13-year-old rape victim in Mississippi is denied an abortion – the same justices will claim their rulings stem from impartial legal reasoning, and are not motivated by right-wing, religious ideology, or simple misogyny.

Such claims are utter nonsense. The religious right has been organising for decades to see the day when Roe v Wade was replaced by a ruling for forced childbirth. One of the five who overturned Roe v Wade, Brett Kavanaugh, is even on record as having political revenge against the Democrats on his to-do list. Up before the Senate Judiciary Committee, as a Supreme Court nominee, Kavanaugh accused Democrats and the Clintons of orchestrating a political “hit” to keep him out of the country’s highest court. Kavanaugh even said that if confirmed to bench, “what goes around comes around”.

What could be worse than a vengeful Supreme Court judge? A dishonest one, perhaps?

Leftwing critics – notably, Democrat Alexandria Ocasio-Cortez – accuse all five conservative justices of lying about their intentions for Roe v Wade during their confirmation hearings. This isn’t strictly true. They evaded, dodged and blocked Democrat Senators’ questions like skilled politicians – despite of course, insisting they are nothing of the sort.

They might have not lied outright then. But they are part of one big lie, which insists the Supreme Court is politically impartial and concerned purely with upholding the constitution. In striking down Roe v Wade, Justice Alito even insisted that the court majority was neutral on the issue of abortion (“our opinion is not based on any view about if and when pre-natal life has rights”). Another lie. They must think people are stupid.

You could argue that Supreme Court judges are by definition, political appointees. They are chosen by US presidents to interpret the law in line with their political thinking. But times are changing. They have already changed. A third of the current Supreme Court was appointed by one, twice-impeached president, who tried to overthrow the result of an election, with lies and sedition.

The court’s most reactionary member, and possibly its most reviled among liberal circles, Clarence Thomas, is married to Maga activist Ginni Thomas, who attended the “Stop the Steal” rally in Washington, which of course, led to the Capitol being assaulted.

Before Donald Trump made his final appointment to the Court, that of Amy Coney Barrett, in 2020, there had already been a 5:4 conservative majority. But the chief justice, John Roberts, a relatively moderate conservative, was prepared to vote on occasion with liberal justices in line with his duty of applying the law, rather than promoting social conservatism. Now, with a 6:3 conservative majority, the de facto role of chief justice has passed to Thomas.

As an “originalist”, the very scary Thomas believes the US Constitution should be applied exactly as it was in 1788, regardless of how reality has changed in 236 years. He has also suggested that now the right to abortion has gone, it might be time to revisit earlier Supreme Court verdicts allowing the right to access contraception and to marry someone of the same sex. (But not, as critics have noted, the right of a Black man like Thomas to marry a white woman like Ginni, enshrined by Loving v Virginia in 1967.)

Alito has contradicted this and said the assault on civil rights ends with Roe v Wade.

In justifying Sunday’s ruling, though, the conservative justices appear to be tying themselves in knots. They assert that abortion is unprotected just because it is not deeply rooted in American history and tradition. But neither are contraception, intimacy between consenting adults, marriage to someone of a different race or of the same sex. So, when Justice Alito says these rights are not in danger, why should Americans believe him rather than Clarence Thomas?

Neil Siegel, a law professor at Duke University, who acted as special counsel to then-senator Joe Biden during Alito’s Supreme Court confirmation, has a bad feeling about all this. “I fear that it [the abortion ruling] will also prove disastrous for a deeply polarised country and for the court itself, which seems intent on eroding its own public legitimacy by refusing to discipline its more extreme ideological impulses,” he says.

In truth, these depressing Supreme Court rulings stem not from the prejudices of five judges, but from a deficit in US democracy. Trump, who lost the popular vote by 3 million in his first election, installed the conservative majority. The increasingly indefensible structure of the Senate, which gives vastly greater voting power to Americans in conservative, rural states, will ensure that for the foreseeable future, things stay this way.

The Founding Fathers designed the system to protect Americans against “the tyranny of the majority”. It’s the threat from the minority that America needs to worry about now.

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