Dhe Democrats were prepared for that day. When the United States Supreme Court delivered its landmark ruling in Roe v. Wade,” President Joe Biden and House “Speaker” Nancy Pelosi unanimously condemned the “extreme” decision to nullify the constitutional right to “reproductive self-determination.” Both defiantly emphasized that abortion rights would be decided in the autumn congressional elections. Pelosi even scolded the court, which had made a “dangerous decision” on gun law the day before, a “Trumpist Supreme Court”.
It is grossly oversimplified to regard the supreme court shift to the right as Trump’s legacy. Pelosi therefore did not forget to mention the man who had secured the conservative majority on the jury in the background. Mitch McConnell, the Republican frontman in the Senate, is now on target.
It was he who prevented outgoing President Barack Obama from nominating a left-liberal constitutional judge in 2016. It was also he who made a Faustian pact with the great “disruptor” after Trump’s election: he promised his support to the president he didn’t want because he knew what he would get from him. “Mitch” only wants judges, Trump once said.
Trump hijacked the movement
And McConnell got them: Gorsuch, Kavanaugh and Coney Barrett. The President nominated conservative lawyers whom McConnell brought to him from the politico-juridical complex. Trump thus secured the support of conservative, evangelical and right-wing Catholic voters. The Kulturkampf was already being planned in these milieus when Trump was still investing in real estate. His populist movement only hijacked him later.
The fact that the Supreme Court was able to become the venue for this “culture war” is due to American constitutional history. In Germany, Karlsruhe may serve as a substitute legislature in cases where the Bundestag shirks unpopular decisions. In the United States today, the Supreme Court serves as a lever for conservatives to prevent or reverse constitutional changes.
From the point of view of the Democrats, the conservative majority of judges made two judgments that even contradict each other in terms of their systematics: First, the Supreme Court rejected a law of the State of New York that made the right to bear arms conditional, with reference to the second amendment to the constitution. Then the court overturned the 1973 landmark ruling that effectively prohibited states from limiting abortions to fetal viability.
At the time, the judges derived a right to privacy from the 14th Amendment. According to the Democrats, federalism – the central battlefield of the republic since its founding – is used arbitrarily. This reveals the extreme agenda of the activist majority of judges.
For the “originalists” the text of the constitution counts
For conservative America there is of course no contradiction. The right to bear arms is in the constitution. However, there is no mention of a right to an abortion. The text of the constitution and the original intention of the founding fathers are authoritative for the “originalists” – even more authoritative than case law.
In both cases, the judges ruled against majorities in society. While the majority of Americans defend the constitutional right to own guns, they support government restrictions. The vast majority was also against repealing Roe v. Calf”. So the triumph of the political right carries a risk.
While the Democrats regard the verdicts as campaign ammunition, moderate Republicans fear for the decisive votes of the “suburban women” – the women with college degrees in the affluent suburbs of contested states who reject an ultra-conservative agenda as well as left-wing social experiments. With a view to this clientele, some Republicans had just managed to slightly tighten gun laws. And with those voters in mind, Republican senators are now saying they support legislation designed to strengthen women’s right to choose their bodies.
The big question is whether the judgments are just a start. Democrats fear same-sex marriage and what conservatives see as liberal zeitgeist rather than civil rights are also at risk. At least one judge wants to continue along those lines. The American Kulturkampf is entering the next round.