William Brennan, the liberal conscience of the US Supreme Court, used to speak, in private to his law clerks, about “the rule of five”. Tactical compromise was sometimes necessary, believed the wily Brennan, in order to woo a majority of five out of the nine justices on the Court on a particular decision. In the larger scheme of things, Justice Brennan, who sat on the Court between 1956 and 1990, believed that the arc of justice bent towards liberal outcomes. At present, however, certain liberties that Americans have for decades taken for granted, depend precariously on the “rule of five” – that is, on the five ultra-conservative justices appointed by recent Republican presidents: Clarence Thomas, Chief Justice John Roberts, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.
In May 2019 the Alabama legislature passed a highly restrictive abortion bill that outlawed abortions even in cases of rape and incest. Any doctor who carried out an abortion would be liable to a jail term of up to 99 years. Already this year several other states – Georgia, Kentucky, Missouri, Mississippi, Ohio and Louisiana – have passed bills that effectively outlawed abortions, by making the procedure illegal if a foetal heartbeat can be detected. Given the lag between conception and a woman realising she is pregnant, such provisions narrowly restrict the possibility of legal abortion.
None of the laws has yet come into effect, and they will face legal challenges – which is exactly what their Republican proponents want. Their fervent wish is that these laws find their way on to the docket of the Supreme Court, which, since the controversial appointment last autumn of Brett Kavanaugh, now has an in-built pro-life majority. The Democrats ought to have benefited from the normal churn of retirements and deaths among the justices, but the Senate (which has the constitutional role of confirming or rejecting presidential nominations to the Supreme Court), then dominated by Republicans, refused point-blank in 2016 to consider President Obama’s nominee Merrick Garland on the spurious grounds that it was the president’s last year in office. Since then Trump has successfully appointed Gorsuch and Kavanaugh to the Court. The new regime of five significantly changes the balance on the Court, and threatens the standing of Roe vs Wade, the landmark pro-choice judgment of 1973.
For the moment, however, Roe vs Wade stands as precedent, as modified by Planned Parenthood vs Casey (1992), which permits state regulation of abortions from the point of foetal viability, indeed before that if no “undue burden” is placed on the woman. Nevertheless, there is a further wrinkle.
A central governing principle of the Supreme Court is its deference to established precedent – what is known as the doctrine of “stare decisis” (a Latin phrase meaning, to stand by things decided). This convention confers a certain protection for decisions such as Roe. But in May, in a highly technical case – Franchise Tax Board of California vs Hyatt, which dealt with the somewhat arid jurisdictional issue of the sovereign immunity of the states from private lawsuits brought in the courts of other states – the conservative justices blithely overturned a long-established precedent, Nevada vs Hall (1979), in a narrow 5-4 decision.
In a dissenting opinion, Justice Stephen Breyer, one of the four liberal justices, complained that overruling a seemingly “sound decision” was “to cause the public to become increasingly uncertain about which cases the Court will overrule and which are here to stay”. More ominously, Breyer added: “Today’s decision can only cause one to wonder which cases the Court will overrule next.” Easily decoded, the message was obvious: the right-wing majority on the Court is preparing to overturn Roe.
How could this happen, especially in a modern democracy like the US, where urban coastal populations are as progressive as people anywhere on the planet? How could a woman’s right to choose have no firmer basis than the changing personnel and ideological preferences of the Supreme Court?
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We do things differently here. In the UK – or at least in Britain, excluding Northern Ireland – abortion is not a salient theme in politics. In good measure, this is because the question was settled democratically in parliament with the passage of David Steel’s abortion bill in 1967. Whatever one’s personal views of abortion, the subject does not give rise to procedural or constitutional issues. In the US, on the other hand, abortion not only resonates with the Christian right – Protestant as well as Catholic – as a central theme in the culture wars, it also raises questions about process that touch upon the very character of America and its government.
For in the US the founding constitution of 1787-88, amended first in the Bill of Rights (1789-91) and then by subsequent constitutional amendments, sits at the core of American identity. The problem for liberals is that the 18th-century framers of the constitution and Bill of Rights did not share our 21st-century obsession with questions of sexual liberty and identity.
During the 1950s and 1960s, under the regime of Chief Justice Earl Warren – a liberal California Republican nominated to the Court by President Eisenhower – the Court tried to make good on the unspecified liberal potential of the constitution, by using judicial power to bring America into alignment with the progressive norms of modern western society. Most famously, racially segregated education was outlawed in Brown vs Board of Education (1954). There were further liberalising decisions across a range of topics, including sexual privacy. In Griswold vs Connecticut (1965) the Court struck down an archaic Connecticut state law that banned the use of contraceptives. But how were the justices able to justify their actions in terms of a historic constitution that had nothing explicit to say about sexual matters?
It wasn’t easy; indeed, the solution was tortuous. The Court ruled 7-2 in Griswold, with the majority opinion, written by Justice William O Douglas, arguing that certain provisions in the Bill of Rights had shadowy “penumbras”, created by “emanations” from these guarantees. By tracing these penumbras emanating, for example from the Third Amendment (which banned the domestic quartering of troops), and the Fourth Amendment (regarding freedom from searches and seizures), Douglas conjured up the notion of a zone of marital privacy within the home.
Griswold provided a crucial precedent for Roe vs Wade. “Jane Roe” was the legal pseudonym given to the pregnant Norma McCorvey in her challenge to Texas’s highly restrictive abortion law. (Ironically, McCorvey later converted to Catholicism and became a vocal pro-life champion.)
Justice Harry Blackmun, author of the Roe decision, went far beyond Douglas’s tortuous scholasticism in his attempt to bring the law into alignment with modern norms. Indeed, Blackmun’s decision in Roe reads more like a piece of legislation than it does like the judicial determination of a fundamental constitutional freedom. Blackmun divided a pregnancy into three trimesters during which different rights and interests prevailed. During the first trimester, the state could not prohibit abortions; during the second trimester, the state had a stake in regulating medical provision; but only in the third trimester could it restrict abortion. Where, critics asked, did he discover this level of detail in the constitution?
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Blackmun’s critics are not only found on the right. The Court’s champion of women’s rights, Justice Ruth Bader Ginsburg, is politely scathing about Blackmun’s quasi-legislative overreach. Instead of fashioning a “regime blanketing the subject”, Blackmun should have simply overruled the Texas abortion law. Tellingly, earlier in his career Blackmun had been legal counsel for the Mayo Clinic in Minnesota, and at the core of his decision was an overriding concern for the professional concerns of doctors, not simply the rights of women. Ginsburg noted, moreover, that the decision whisked the issue away from state legislatures at a time when there was liberalising traction on this issue across the nation. Indeed, in 1971-72 the Equal Rights Amendment for women passed the House and Senate with whopping bipartisan majorities, and, it seemed, only awaited the required ratification from three-quarters of the states. But ratification never came, falling just short of the required number, in part due to the conservative reaction to Roe.
No Roe-ing back: pro-choice activists demonstrate in New York in July
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By the late 1970s and early 1980s, an emerging “moral majority” had come to reject the ungodly liberalism of the Court. Evangelicals and other religious conservatives saw in the liberal idea of a “living constitution” – one that evolves to meet the changing social norms of the American people – only the deceptive sleight of hand of Douglas and Blackmun. In reaction to the living constitution, jurists on the American right turned to originalism, the doctrine that the constitution should be interpreted in the light of the original intent of its 18th-century framers. The corollary is that if the constitution says nothing about sexual privacy, then that is an issue properly left to the legislatures of the individual states – several of which, especially in the South and heartland, are ultra-conservative.
Originalism is now firmly entrenched within the legal profession, not least through the efforts of the Federalist Society, an influential right-wing association of lawyers established in 1982, which has chapters across the nation and in leading law schools. The activities of the Federalist Society chimed with the concerns of the Reagan administration, and in the mid-1980s President Reagan’s attorney general Edwin Meese launched a public attack on what he saw as the flawed idea of the “living constitution”. However, the conservative originalists have ironically fallen into the same trap as the fanciful liberal judges that they castigate.
Judging involves style as well as substance. While the substance of interpretation can be either liberal or conservative, matters of style range from judicial restraint – a cautious deference to democratically elected legislatures and the observance of stare decisis – to judicial activism, where an ideologically driven judiciary appears to usurp lawmaking powers properly belonging to Congress and the states. Originalists started out accusing liberal judges of activism, but now it is the conservatives who are becoming cavalier about overturning judicial precedent.
Conservative judicial activism matters. Justices on the Supreme Court have the power to strike down state and federal laws when they perceive them to be unconstitutional – and now, it seems, overturn established precedents when they believe them to have been incorrectly decided. Moreover, there is no retirement date from the Supreme Court. Justices can sit there for life. William O Douglas served on the Court from 1939 to 1975, and more recently John Paul Stevens from 1975 to 2010, choosing to retire only at 90. Some of the current crop of conservative justices are relatively young men – John Roberts is 64, Kavanaugh 54 and Gorsuch 51 – whereas among the liberals Breyer is 81 and Ginsburg 86. Trump might well be able to obtain further ultra-conservative appointments on the Court, and by these means control the lives of Americans long after his presidency has come to an end.
The Court has become as polarised as American society. Half a century ago the political spectrum ran, left to right, from liberal Democrats by way of liberal north-east Republicans to conservative Southern Democrats and heartland and western Republicans. On the Court, too, between its most liberal and conservative extremes there was a variegated, sometimes unpredictable middle ground of liberal Republican and conservative Democrat appointees. Ironically, some of the most liberal figures on the Court such as Warren and Brennan were Republican appointees, elevated by Eisenhower, a non-partisan Republican. The tradition continued until recent decades. Blackmun, the author of the Roe decision, was elevated to the Court by Richard Nixon as a law-and-order conservative, but soon mellowed into a social liberal. On the other hand, Justice Byron White, a Democrat nominated to the Court by John F Kennedy, proved in general to be a social conservative. Only in recent decades has this rich complexity given way to a more narrowly ideological divide between Republican and Democrat appointees. The same forces that have hollowed out the centre ground of American politics have similarly excavated the centre of the Court.
Yet the Court requires a broad base of support if it is to enjoy legitimacy. During the 1930s ultra-conservative laissez-faire justices struck down aspects of President Franklin D Roosevelt’s New Deal as unconstitutional. The Court was markedly out of step with public opinion, and Roosevelt threatened to expand the Court and pack it with his own appointees. Today the guardian of the Court’s legitimacy as an institution is the chief justice, John Roberts. When President Obama’s health-care reforms came to the Court, Roberts controversially broke with his fellow conservatives in order to avoid striking down a major piece of legislation. Will Roberts find it convenient to switch sides again when abortion comes to the Court, or perhaps contrive to chip away at Roe without directly overturning it?
The chief justice is pulled in different directions by his own deeply conservative preferences and his concern to maintain the standing of the Court. Indeed, two of his four fellow conservative justices, Thomas and Kavanaugh, both known to the American people more for sexual harassment allegations than for their jurisprudence, already present Roberts with a major public relations problem.
Beyond the Supreme Court itself there remain broader questions of constitutional legitimacy. So long as the ultra-conservative South was dominated by the Democrats – a legacy of the Civil War – then Southern prejudice was politically constrained by the norms of the wider party. But from the late 1960s onwards, as the Republicans gradually began to capture the South, the effect was to pull the Republicans to the right, the Democrats to the left. Compromise has become ever harder to achieve. Ideological grandstanding has gummed up the basic machinery of governance, resulting in a series of government shutdowns.
Polarisation has also brought into sharper focus the democratic deficits in the constitution. In the past 20 years, two presidents – George W Bush in 2000 and Trump in 2016 – have been elected without a majority of the popular vote. In the former case, Bush (half a million votes short of his opponent Al Gore) owed his election to the Supreme Court, whose ruling in the case of Bush vs Gore was nakedly partisan. Trump lost the popular vote by almost three million. How big does the disparity have to be in these circumstances – ten million, perhaps? – before the Electoral College loses legitimacy?
So many basic components of the constitution have undemocratic features – the Supreme Court; the Electoral College; the Senate, where states are equally represented by two senators each regardless of population; the gross under-representation of Democrat-leaning Washington, DC, a federal district without the privileges of a state – that it seems likely long-standing but marginal left-wing criticism of the constitution as an undemocratic affront will gain wider purchase. Abortion and the character of the Supreme Court will feature as campaign issues in the 2020 election, but constitutional reform faces too many obstacles and is unlikely. Even in the event of the hypothetical triumph of the Democrats in presidential and congressional elections, the dead hand of conservative Republicanism on the Court can for decades ahead strike down laws and check the speed of social change.
Colin Kidd is a professor of history at the University of St Andrews
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