How much authority does the US Supreme Court still have in a country divided to the bone?

Many people have a rosy picture of the US Supreme Court, that courageous justices correct social injustices, political impasses and administrative blunders at the highest level. All for the benefit of the less privileged American who is discriminated against in education, uninsured and denied abortion, equal pay, union representation and access to the ballot box.

Highest inequality by lawyer, journalist and author Adam Cohen makes short work of it. The idealistic image certainly exists. But it’s mostly projection. That was true only during the Warren Court, a relatively short and, above all, unrepresentative period from 1953 to 1968, in which social liberal justices dominated. And where such a progressive interpretation of the law even in American politics could count on little resistance.

Cohen shows that structurally, and certainly since the Nixon years, the US Supreme Court should be counted among the conservative architects of the US.

It is therefore a bit of a shock to those who associate the Supreme Court with the abolition of segregated education, the ban on apartheid in public transport, the right to a lawyer for the detainee and of course ‘Roe v. Wade’, which established a right to abortion . And for those who see the phenomenon of Ruth Bader Ginsburg as representative. The only Supreme Court justice to enter popular culture as “the infamous RBG‘. And became an icon for liberation and equality.

In reality, the decisions where the court did not vote along ideological lines were therefore exceptions. A constitutional right to abortion was recognized in 1973, same-sex marriage in 2003, usually due to the overwhelming majority of public opinion. This is because a la carte judges occasionally turned out to be ideological wanderers. But once there was ideological polemic along the conservative-progressive line, the Supreme Court usually mirrored it reliably. And so the question of which political party has seized the Supreme Court has always been of decisive importance. Republicans have been leading this for decades.

also read this obituary by Ruth Bader Ginsburg

For Democratic presidents, therefore, the dilemma is whether to spend political capital on legislative correction of politically undesirable Supreme Court rulings. President Obama did so with the “Lilly Ledbetter Fair Pay Act” in 2009, dedicated to the woman who lost her claim for equal pay with male colleagues at Goodyear at the Supreme Court. But he failed to legislate the right to abortion, so the court could not overturn it. So what happened in June in Dobbs vs. Jackson, to the dismay of a majority of American voters who favor abortion rights.

serfs of the state

How monumental that decision is becomes clear in we disagree, the minority opinion of liberal Justices Breyers, Sotomayor, and Kagan, published in book form. Moreover, with the text of the judgment itself and the individual (‘concurring’) opinions of judges Thomas, Kavanaugh and Roberts. The surprise of this book is that it is a book is – it turns out to be readable, which is a boost for a heavy legal text from any Supreme Court.

Breyer, Sotomayor and Kagan grab the reader with their text – it is immediately clear that dissenting opinions are fuel for public debate and must therefore be available. In the consensus obligation in which most European Supreme Court judges must write their judgments, the need for completeness usually crushes any stylistic urge. The three dissidents on the abortion issue are motivated to the core. After many episodes, the gong sounds ‘We disagree’. And not, as usual, ‘We respectfully dissent’. That space is not available right now.

This is about nothing less than a woman’s right to live her own life without being forced by the state to carry out a pregnancy. Considering the woman as independent, sovereign and fully equal means allowing her at least to participate in the decision-making process.most consequential of all life decisions’. This decision to remove it means that the balance between the interests of a viable fetus and the woman herself has been thrown out the window.

From the moment of conception, the woman has effectively been disenfranchised. This leads to draconian legislation in the individual states: pregnancies after rape or incest must also be terminated. The state thus imposes forced pregnancies, primarily for moral reasons, including the risk of death. Women are thus slaves of the state.

The deviants predict that ‘this majority’, their colleagues, are not yet finished interfering with the citizen’s freedom. The verdict casts a shadow over the right to procreation, physical integrity, same-sex marriage and contraception. The judgment’s supporting argument is, after all, that the right to abortion ‘is not deeply rooted in history’. The same naturally applies to contraceptives and other relative innovations in the private relationships between people.

Legally, there is a gap in the question of whether the constitution must be interpreted exclusively as a historical text, according to the customs and views of the time. Or is the constitution a living document that evolves with a changing society? The Fourteenth Amendment, which makes all citizens equal before the law, dates back to 1868 and actually has no right to abortion. But does that really mean that the legislator’s point of view must still be normative today? The dissenters delicately point out that the then legislature, the original writers of ‘We the People’, were exclusively men. In 1868, women hardly participated as full citizens. They were not allowed to vote, had no constitutional protection, did not make decisions about their own bodies. Should that still be the case in 2022? Women have remained second-rate.

The crystal clear way in which the dissident trio explains the difference between the ‘rule of law’ and the ‘rule of judges’ as they believe is currently the case also stands out. They blame the majority for destroying Roe v. Wade only because they happen to hate it themselves. Whereas a Supreme Court may only ‘deal’ if it can justify that there have been many factual, legal and social changes since the relevant precedent, meaning that a new course is not only appropriate but necessary.

25 years in prison for shoplifting

Adam Cohen is even more pessimistic about future Supreme Court rulings. But also more broadly based. Highest inequality is an indictment in which the author proves his thesis per chapter in yet another new area of ​​conflict. Social Security, Education, Campaign Finance, Voting, Labor Relations, Big Business, Criminal Justice. In almost all of these areas, the Supreme Court (except during the Warren period) puts the ordinary citizen at a disadvantage. Social assistance issues the court in Dandrige v. Williams (1970) called “unmanageable” and “no responsibility for the court.” Inequality and poverty had thus been set aside as constitutional issues. Today, 40 million Americans live in poverty, including 18.5 million in extreme poverty. His book is a litany of missed opportunities, an ode to a more just and equal America “that might have existed” if the Court had interpreted its brief differently.

His most persuasive comparison is between the Court’s position on colossal financial penalties punishing responsible corporations and the enormous prison terms some states impose on some repeat offenders. The Court effectively put an end to these so-called ‘punitive damages’ in State Farm Mutual Automobile Insurance cv Campbell (2003). Compensation to be paid by a badly behaved insurer of $145 million was disproportionate and unfair, it was found. Nine million was enough. But for the 37-year-old videotape thief, who was sentenced to 25 consecutive years for doing so, a different standard applied. He could possibly be released on parole at the age of 87. But that was it does not in violation of the prohibition of cruel or unusual punishment. Then there had to be a “special case”, quod non. The then ‘dissenter’ Justice Souter held that if this is not disproportionate, the word has no meaning.

gay rights

This makes the question of the course that the Court will set in motion after the anti-abortion ruling doubly relevant. That’s actually the theme for it too Justice on the brink, a portrait of the Court in the tumultuous year 2020-2021. It explores Trump’s influence and his appointment of RBG’s successor Amy Comey Barrett. Cohen also believes, along with many, that the new conservative majority on the Court will also limit same-sex marriage, birth control and gay rights after the abortion ban. But he suspects the real conservative agenda goes further: the rollback of Roosevelt’s New Deal. The federal government should do no more than provide post offices and declare war when it suits them. But health care, social security, working conditions, minimum wage, housing? The left wing that was not on the radar of historical constitutionalists.

On that background Justice on the brink interesting, if limited. It is journalistic research of the highest order, but over just one year in which Trump secured a hard conservative majority in the Court with the nomination of Barrett. In fact, it is too short. It is also the year before the verdict, when 49 years of certainty about the right to abortion ended. The author Linda Greenhouse concludes on the basis of an exhaustive analysis that the Supreme Court after the 2020-2021 election period has not (yet) subordinated itself to Trump’s agenda.

But also that something has already broken. The fiction that the Court, whatever its makeup, is governed only by precedent is shaky. The conservative majority now unilaterally sets the tone and makes the court vulnerable. If the public comes to see its highest judges as nothing more than ‘politicians in togas’, the impertinent politically constituted body of government, what is left of the judiciary? Things are not looking good in a country fundamentally at odds with itself on separation of church and state, abortion, election results, capital punishment and racial equality. An ideologically deeply divided Supreme Court should not succumb to the temptation to let its own social, cultural or political preferences prevail. But stick to the law and jurisprudence with all their might. Stare decision – stick to what you decided – served as a shield for the judges until now. Whether it will remain so is highly uncertain.

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