By Alex B.
The overturning of Roe v Wade on the 9th of May 2022 highlighted a major problem the US constitution has in protecting the rights of its citizens, a feature which it looked to guarantee in its codification 1789.
The key issue is the process of appointment for new Supreme court judges, which is as follows: the president nominates his favoured judge (with no set requirements for service as a justice) with a vote from the Senate following to scrutinise the presidential nominations. Yet, a pattern has emerged over the past decade: “Senate election results are very much in sync with states’ presidential votes” according to Pew Research Centre seen above.
This severely limits the likelihood of a rejection vote as Republican Senators are likely to vote for a Republican nomination and Democrats vote against it. Hence, the scrutinising function which the Senate exists for is rendered considerably less meaningful.
This was the case in 2017 when the Senate voted President Trump’s nomination, Niel Gorsuch 54-45 with all Republicans voting in favour plus three, somewhat rogue, Democrats also.
This was also the case in 2018 when the Senate voted Brett Kavanaugh, President Trump’s nomination, 50-48 with all Republicans bar Lisa Murkowski voting in the president’s favour. *Do note Kavanaugh was sworn in despite allegations of sexual assault to Christine Blasey Ford, Deborah Ramirez, Julie Swetnick, and Judy Munro-Leighton*
This was again the case in 2020 when the Senate Voted in favour of Amy Coney Barett 52-48 with Susan Collins the lone rebel.
Unsurprisingly, the three justices Donald Trump and the Republican majority Senate appointed were and are considered conservative…even by the American standard. Of the nine most powerful judges in America, a third were allowed to be appointed under potentially the most extreme president in history, in only the past five years.
The Roberts Court of 2016-2017 contained justice Ruth Bader Ginsburg, who was crowned by the Washington Times as “liberal bully of the week”. And in a mere half decade the liberal wing of the Court has diminished in an unrepresentative manner.
If you were not surprised by appointment of conservative justices then you certainly will not be astonished to hear that all three of Trump’s nominees voted to overturn Roe v Wade, all of which concurred with ultra-conservative Samuel Alito’s submissions.
Overall, it is likely that without these justices then the court would not have ruled 5-4 to overturn the 1973 judgement, a scary moment of realisation of the rapid adjustment of the Supreme court demographic that the right circumstances can accomplish.
In my mind what is most concerning about the ruling is how a judiciary can rule in a way that is unrepresentative of popular opinion and be considered constitutionally legal. Pew Centre for Research considered opinion polls from 1995-2022, and concluded that currently, 61% say abortion should be legal in all or most cases, while 37% say it should be illegal in all or most cases.
Hence, the overturning ruling illustrates how dangerous the current model is in the US as it allows for the president, a visibly political figure, to influence what should be a politically independent judiciary. The result of this model is an outcome as significant as the current ruling where, regardless of your opinion on the debate, the Supreme court ruled with legal precedent against the will of almost two thirds of the country, in what is a terrifying reality for all.
Looing forwards, the conservative [Clarence] Thomas wrote in his concurring opinion to the ruling on Roe. “In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Griswold v Connecticut established a married couple’s right to use contraception without government interference in 1965. The court ruled in the 2003 case of Lawrence v Texas that states could not criminalize sodomy, and Obergefell v Hodges established the right for same-sex couples to marry in 2015.
One can see, either the majority of opinion is wrong and hence meaningless to in the eyes of these nine conservative judges or constitutional rights are under threat. “It is one or the other” wrote the liberal judges. It is truly frightening that in 2022 these justices are able to be appointed partly because of their political views and then contradict the view of the people they look to protect, potentially to push their own agenda.
Unfortunately, I do not have all the answers, but it seems blatant that a clearer separation between president and the judiciary is a logical solution. A separate commission for example would remove the role of the president in the dealings and promptly sever the political ties to the role that seems to be at play. Nonetheless, a quick solution would benefit the majority of America’s people.
Regardless of your opinion, the problems have not and will not protect the rights of the citizens the judiciary is required to protect. I believe all of us need to look at the situation with intent sooner rather than later or otherwise the potential for similar situations in the future will continue.