By Louise Palmer
On 12th October 2020, mere weeks away from the US Presidential Election, the Senate confirmation hearing for President Trump’s third US Supreme Court nominee began. It is undoubtedly poor political form to make a nomination so close to an election. However, due to the fact that we are in the fourth year of the Trump administration and months into a global pandemic, the decision didn’t come as much of a surprise. Nonetheless, the current nomination is highly significant. Should Amy Coney Barrett be confirmed as a US Supreme Court Justice, there will be a 6-3 conservative majority. Although an upset is possible, the nomination will probably be successful given the Republican majority in the Senate. The current administration is skilled at pushing through Supreme Court nominations.
If Barrett is confirmed, the conservative majority on the Supreme Court will last for the foreseeable future, possibly even a generation. This will undeniably lead the US in a conservative direction. Previous decisions which protect liberty and human rights are in danger of being overturned. The most obvious ruling in question is Roe vs Wade (1973), which legalised abortion in all US states under the fourteenth amendment of the Constitution. Under mounting religious pressure it is extremely likely a challenge will arise, endangering a woman’s control to make her decisions about her own body. This is only one example of the impact a conservative Supreme Court will have on everyday life in the US. To understand the implications of a conservative majority on the Supreme Court, you must understand the basic workings and structure.
Most of us know that the US Supreme Court is the highest judicial body in the USA. In fact the court is given its power from the US Constitution. Most cases will go through a system of lower local and state courts and proceed to the Supreme Court only if they are concerning key legal interpretations or the lower courts have ruled differently on the same matter. Cases will also go to the Supreme Court if they are concerning disputes between states or regarding certain individuals such as diplomats. To this end, I offer a brief guide to understanding the US Supreme Court to all those confused by the seemingly convoluted system.
How the Supreme Court works
Since 1869 there have been nine Supreme Court justices (called Associate Justices), led by a Chief Justice, although the number is set by Congress, so it has the possibility to change. The justices hear each case and individually give their verdicts. The number of justices means that there is not a tied vote, with the Chief Justice often giving the deciding verdict. These rulings are legally binding and must be followed by lower courts. Supreme Court justices are nominated by the President and then face televised hearings from the Senate Judiciary Committee. The nomination will then go to a full vote in the Senate. If successful, the President will formally appoint the Justice to the Supreme Court.
This appointment is for life and justices often serve until retirement or death. The lifelong nature of the role has a significant impact, as a successful nomination will continue well past a single presidency. Given this fact, previous administrations have valued strongly apolitical candidates. However President Trump has disregarded an apolitical approach in favour of nominating those who support him. That brings us back to the current hearings regarding nominee Amy Coney Barrett. She was nominated to replace the late liberal justice Ruth Bader Ginsburg, a progressive justice who is remembered for her strong commitment to gender equality. Barrett comes from the opposite end of the political spectrum. Leaving aside Barrett’s alleged links to the highly secretive and paternalistic Catholic group, the People of Praise, she has a record of favouring both pro-life organisations and pro-gun rights. Interpretations of law, beliefs and political leanings influence a justice’s perspective, and it is clear Barrett will favour a conservative reading. This becomes particularly significant when viewed alongside her potential future colleagues. They include the current Chief Justice John G. Roberts, who is conservative but occasionally takes a liberal stance in certain cases. The other four conservative justices are Clarence Thomas, Samuel Alito, and the two Trump nominees Neil Gorsuch and Brett Kavanaugh. The three liberal justices are Stephen Breyer, Sonia Sotomayor and Elena Kagan. Therefore, another conservative justice such as Barrett would create a 6-3 majority. What would the implications of this be for key issues and human rights?
What does another Conservative on the bench mean?
To put it bluntly, the implications would be far-reaching. There are key votes coming up this year in the Supreme Court. Most notably, an upcoming hearing concerning Obamacare, which has the ability to dramatically affect medical coverage for millions of Americans. Previous cases also illustrate the areas which could prove contentious. The Supreme Court has played a key role in areas such as LGBT+ rights. For example, in 2015 Obergefell v Hodges granted the right to same-sex marriage and recognition of this in all states. Issues regarding LGBT+ rights in areas such as adoption are still very much relevant and it is possible these could come before the Supreme Court in the coming years. On a different note, many commentators have raised concerns about the impact of a conservative court on voting rights. In the past, rulings in the Supreme Court have protected ethnic minorities from discrimination in registering to vote, such as in the 2013 Shelby County v. Holder case. It is likely a conservative court will not follow this previous pattern. Above all the issue which has received the most attention is reproductive rights.
At risk is the benchmark ruling in Roe vs Wade. This ruling has proved to be an extremely divisive issue. In some liberal states there has been a growing commitment to the freedom to access safe abortion. However, in many conservative states (often found in the South) restrictive state laws have been passed to limit access to services. These restrictive laws have been challenged through the US Supreme Court. For example, a restrictive Louisiana abortion law was ruled to breach women’s right to abortion as enshrined in Roe vs Wade. This victory, which ensured reproductive rights for over one million women, was only won on a margin of 5-4. This spells significant danger for human rights in America. The right to safe abortion is not only a women’s right to choose, it prevents many needless deaths and injuries form unsafe abortions. Regardless there is significant pressure from anti-abortion religious campaigners. If Roe vs Wade is overturned, decades of progress for women’s rights in America will be lost.
I haven’t the words to cover all of the far-reaching impacts of a strong conservative supreme court Instead, to end, I would like to illustrate one final point. That is that the impacts of this will not be purely insular. The Supreme Court also rules on the legality of U.S foreign policy, such as the decision to uphold Trump’s so-called Muslim ban. It is not yet certain who will be selected to fill the big shoes of Justice Ginsburg but for those concerned about equal rights, it’s a worrying time.
Protocol Magazine 