Trump’s forging of conservative bench ushers in dramatic ideological shift
Supreme Court poised to turn a hypothetical into a reality after death of Democrat stalwart changed balance
When US Supreme Court justice Ruth Bader Ginsburg died in September 2020, people took to the streets in huge numbers. Sombre vigils turned quickly into a call to arms. They understood the significance of the moment as one that would likely set in motion the dismantling, by the Supreme Court, of one of the most significant pieces of legislation passed in the US in the past half-century.
Roe vs Wade was the landmark 1973 decision that the US Constitution protects a pregnant woman’s right to choose to have an abortion without excessive government restriction.
Ginsburg had become part of the liberal wing of the country’s highest court as it shifted to the right over time. Should the issue have been brought to the panel of nine justices before her death, Ginsburg, a pioneering advocate for women’s rights and a proponent of abortion rights, would have likely cast the tie-breaking vote.
“This kind of outcome is exactly what I’ve been ringing alarm bells about – and this is a five-alarm fire,” said Patty Murray, a Washington senator, the chamber’s third most senior Democrat and leader of its health committee.
If the 87-year-old justice retired under Barack Obama, the Democrat president could have nominated her successor.
Instead, Ginsburg died under Donald Trump, who broke with tradition to install his own choice weeks before the 2020 election.
That replacement was Justice Amy Coney Barrett, a conservative Christian with a long record of personal opposition to abortion.
It was a legacy-making achievement the former president, who seated three justices in his four-year term.
He ushered in a dramatic ideological shift on the bench by forging a new 6-3 conservative majority.
With unlimited terms, the Trump era picks would be ruling on some of the most contentious issues in America for decades to come.
Demands came from progressives in the Democrat Party to “pack the court”, which would allow for an increase in the number of justices to counteract the conservative majority.
They were rejected by Joe Biden, with the president deflecting the question for months before saying he was “not a fan” of the idea.
The Supreme Court had been asked to rule on Dobbs vs Jackson Women’s Health Organisation, a case which centres on whether the state of Mississippi can ban abortion at 15 weeks gestation, about nine weeks before bans are permitted under law. It has been seen as the most important abortion rights case since 1973.
It was reported on Monday that the bench was inclined to uphold the abortion ban in Mississippi and there were five votes – from Justice Samuel Alito, Justice Clarence Thomas, Justice
‘Abortion has become one of the country’s most divisive issues, weaponised by both sides for political gain’
Neil Gorsuch, Justice Brett Kavanaugh and Justice Barrett – to go further and overturn Roe vs Wade. Chief Justice John Roberts, Justice Sonia Sotomayor, Justice Elena Kagan and Justice Stephen Breyer opposed.
In an unprecedented move that perhaps reflected the strength of opinion among dissenting justices, a draft of their decision was shared with Politico.
The leak was an extremely rare breach of the Supreme Court’s secretive deliberation process.
Mr Thomas is the only member of the court ever to have openly called for overruling the case, and Mr Kavanaugh, a Trump appointee, had asked last year if the court would be better off withdrawing from the issue and letting individual states decide.
He said at the time: “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?”
Abortion has become one of the country’s most divisive issues, weaponised by both sides for political gain. This was not always the case – for decades, the anti-abortion movement was largely a fringe one led by
Catholics. However, after Roe vs Wade ushered in country-wide, liberalising reforms, evangelical Christians joined in much greater numbers, rejuvenating and eventually radicalising the movement.
Christian conservatives and many GOP leaders have since sought to overturn it, with religious freedoms becoming something of a cause célèbre for Republicans.
Several red states, such as Texas, Mississippi, and Oklahoma, have pushed through restrictive bills in recent years.
In total, 26 states are likely to ban abortion if Roe vs Wade is overturned, according to the Guttmacher Institute, a pro-abortion rights think tank.
But polling suggests the number of pro-choice voters far outweighs the number of pro-life.
A 2021 poll by the Pew Research Center found 59 per cent of US adults believed it should be legal in all or most cases, while 39 per cent thought it should be illegal in most or all cases.
The news broke just over six months before midterm elections will determine if Democrats can hold their razor-thin majorities in Congress for the next two years of Mr Biden’s term.
As Christie Roberts, the Democratic Senate campaign arm’s executive director, put it, the reported draft opinion “dramatically escalated the stakes of the 2022 election.”
For Republicans, it is the proverbial dog that finally caught the car.
That a longtime hypothetical is suddenly a reality could hurt them politically, in a country where most people generally support legal abortion.
Conversely, the decision could persuade women, independents and more moderate Republicans to join them.
Protesters returned once more yesterday to the steps of the Supreme Court building in the capital.
Elizabeth Warren, a Democratic senator, appeared visibly shaken as she told the crowds: “I am angry and upset, and determined ... Make no mistake, we are going to fight back.”
‘I am angry and upset, and determined ... Make no mistake, we are going to fight back’