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.
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