The Supreme Court could soon abolish the right to abortion. The verdict would be a colossal triumph for supporters of the “pro-life” movement – and evidence of the political influence that rights have through the Supreme Court
President Joe Biden’s “Democracy Summit” has just warned against the autocratic. The US itself is probably facing a time when a right-wing judiciary built by Republicans, especially the Supreme Court, is rubbish with the idea that the majority will set the tone. The women and men in the judges’ robes help a right-wing minority to gain power on social issues. America, however left, can revolt; but it comes too late. With Biden himself there is no urgency. His study commission for the reform of the Supreme Court presented a plan at the beginning of December, tentatively and within the supposedly possible, but first of all for the drawer.
Mississippi rushes forward
Progressive Americans cheered during Donald Trump’s reign over this or that shouting verdict that laws also apply to the man in the White House. Remembering disruptive Supreme Court rulings on civil rights in the 1950s and 1960s, legalizing abortion in the 1970s, and same-sex marriage equality a few years ago, America’s progressives somehow expected to rely on the judiciary. How wrong this is can be seen in all sharpness in the ongoing controversy over abortion. For decades this has been legal until the fetus is independently viable after about 22 to 24 weeks.
In 1973 the Supreme Court had issued a basic judgment (“Roe vs. Wade”) with seven to two judges’ votes and granted women the right to determine their pregnancy. Around 60 percent of Americans today believe that abortion should be legal in all or most cases. Still, the likelihood is now higher than ever that the Supreme Court will overturn the 1973 judgment regardless of the precedent. Six of the nine judges are established rights. Three of them, Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh, were named by Donald Trump. To create a right-wing Supreme Court was his key promise to the legal Christian electorate, who were bothered by his way of life and yet voted for him with an overwhelming majority.
One of the remaining liberal judges, Sonia Sotomajor, spoke at the hearing on abortion recently of a “bad smell” that this court will probably never get rid of if, as expected, it delivers a politically motivated verdict. Specifically, the hearing was about a law in the Republican-ruled state of Mississippi prohibiting abortion after the 15th week, long before the fetus was viable. Mississippi’s attorney general Scott Stewart said there was no right to abortion in the constitution. And apparently met with some approval. The court must be “neutral,” said federal judge Kavanaugh. It would be left to the 50 states to write their own laws. Judge Barrett brought up the idea that women could put babies up for adoption in the event of unwanted pregnancies. If the Supreme Court should override “Roe vs. Wade”, opponents such as supporters of the right to abortion believe that more than half of the states would largely or completely ban abortion.
In addition, opponents of abortion have organized their supporters better with a network of churches and associations that bring in one election victory after another for the Republicans in the states and, as in Mississippi, enforce restrictions. “Pro-Life” became part of a powerful movement that – although never numerically majority – helped bring Trump into the White House and enable a right-wing majority in the Supreme Court. In November 2022, if Republicans win back a majority in the House and Senate mid-term elections, these audiences may feel encouraged. And the US elite is divided: Liberal America shouldn’t lack money, but the right invest more effectively in media and grassroots movements, especially since the Supreme Court has made it easier to buy influence with election donations.
Whatever the ethnic and religious concerns of anti-abortionists, their protests go hand in hand with what is often referred to as right-wing populism. It is directed against immigration and civil rights for minorities, is against the principle of the separation of church and state, against Covid regulations and for a loose gun right. In 2022, the Supreme Court will decide whether certain restrictions are legal. The firearms lobby has been optimistic since eroded suffrage resulted in a Republican majority in several states. The Supreme Court has its part in this too.
Biden remains too passive
There are no measures in sight to reduce right-wing power in the Supreme Court. Judges are appointed for life. Biden’s non-partisan commission has discussed limiting the term in office, but that is considered highly unlikely. The Republicans and a couple of Democrats wouldn’t go along. Spokeswoman Jen Psaki says Biden is reviewing the report, there is “no timeline”.
This is in contrast to the power-oriented approach of the Republicans. In Barack Obama’s final year in office, they refused to vote in the Senate on his candidate for the Supreme Court. At the end of the Trump administration, Republicans pushed federal judge Barrett through overdrive. Kavanaugh did not undertake a comprehensive review of attempted rape allegations in the 1980s.
In future elections, Trumpist Republicans will challenge defeats in court. During the investigation into the run on the Capitol on January 6, 2021, Trump loyalists do not comply with subpoenas. You are apparently doing so on the assumption that you can drag the matter off in the courts.
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