Disagreeing with the majority of her colleagues in a case last week on taxpayer funding and religious schools, liberal US supreme court justice Sonia Sotomayor expressed her worry:
“With growing concern for where this court will lead us next, I respectfully dissent.”
Perhaps it was a signal of frustration of what was to come. Two days later the top US court issued a ruling likely to make it harder for states to introduce gun controls and easier for those already in place to be challenged.
And then on Friday came the decision that shook both the country’s legal and political worlds — the 50-year-old constitutional right to have an abortion was eliminated as the 1973 landmark case “Roe V Wade” was struck down.
The move delighted conservatives and religious groups who had been campaigning for it for decades.
For liberals there is now growing concern that the court appears to be moving increasingly to the right and they are worried where it may all lead.
The abortion ruling had been expected. It followed almost exactly a draft that had been sensationally leaked in May.
[ Maureen Dowd: The radical reign of Clarence ThomasOpens in new window ]
Police and politicians had been fearful of trouble. A man with a gun was arrested outside the home of one conservative judge a couple of weeks ago, leading to a tightening of security.
An eight-foot fence was erected around part of the supreme court building.
Conservatives, on the other hand, see the current supreme court as moving back to constitutionalism, towards interpreting the constitution in the manner, they maintain, was intended by its framers 200 or so years ago
Democrats, women’s groups and liberals are furious. They see they have been outplayed by conservatives, evangelicals and republican politicians in a long-term game, spanning decades, to have the courts deliver measures that in all likelihood would never have passed through congress.
Some are now asking whether the court is making decisions for 330 million Americans based on law, precedent and history or whether a majority of justices have become essentially politicians in robes, pushing their own radical right-wing agenda — because they happen to have the votes.
The chairman of the Democratic national committee Jaime Harrison at the weekend described the supreme court as “illegitimate”.
Some senators have suggested they were misled by certain judges during their confirmation hearings on their real intentions.
Conservatives, on the other hand, see the current supreme court as moving back to constitutionalism, towards interpreting the constitution in the manner, they maintain, was intended by its framers 200 or so years ago.
[ Roe v Wade ruling will enable abortion bans across more than 20 US statesOpens in new window ]
Conservatives believe that liberal judges had over recent decades made decisions that changed the face of the country based on implied or unenumerated rights that are not specifically spelled out in the constitution.
At the heart of Justice Samuel Alito’s majority abortion ruling last Friday is that the 14th amendment protected only unwritten rights that were already understood to exist in 1868, when it was adopted.
Alito, however, argued other rights deemed to have stemmed from an evolving view of freedoms under the 14th amendment would not be in danger from this principle. Abortion was different.
In Ireland the 1983 referendum was followed by arguments over whether women should have the right to information on abortion services elsewhere and the right to travel to secure these. Liberals are certain that similar issues will now arise in the US ...
Liberals and even the president are not convinced.
They point to comments made by conservative justice Clarence Thomas who seemed eager to re-visit other social rights derived from the same source.
They fear Thomas was essentially inviting cases that could allow the supreme court to review contraception, same-sex relationships and same-sex marriage.
Some liberals contend that pro-life groups and Republican politicians had been aligned for years on a strategy of introducing increasingly hardline abortion legislation at state level in the hope that at least one legal challenge would make its way to the supreme court where the conservative majority could use it to revisit “Roe V Wade” — just as happened last Friday.
The White House on Saturday said people should find Thomas’s comments “chilling”.
The court’s majority last week also seemed to believe its ruling to leave abortion to politicians would take it out of the whole area for good.
However, the minority argued there would be years more of legal wrangling.
In Ireland the 1983 referendum was followed by arguments over whether women should have the right to information on abortion services elsewhere and the right to travel to secure these.
Under Trump the conservative Federalist Society enjoyed enormous influence over who would get on to the White House’s list of potential supreme court nominees
Liberals are certain that similar issues will now arise in the US as various states seek to implement their own abortion bans. They fear how the supreme court with its 6:3 conservative majority would address these issues.
Liberals have demanded that US president Joe Biden do something. They highlight the three key justices appointed by Donald Trump are all in their 50s and could serve for decades.
But simply appointing more supreme court judges to outvote the current conservative supermajority is not on Biden’s agenda, the White House said on Saturday.
Liberals argue conservatives worked for years to stack the court.
This was the backdrop to the Senate republicans refusing to even contemplate a nomination process for Barack Obama’s nominee Merrick Garland ostensibly on the basis that it was too close to an election — and then reversing themselves to rush through a Trump nominee even closer to polling day in 2020.
Under Trump the conservative Federalist Society enjoyed enormous influence over who would get on to the White House’s list of potential supreme court nominees.
Due to the political manoeuvring on the part of Republican senators and happenstance, Trump had the opportunity to appoint three justices, all of whom have lifetime appointments.
Following the ruling last Friday Trump was quick to claim credit.
“Today’s decision, that is the biggest WIN for LIFE in a generation, along with other decisions that have been announced recently, were only made possible because I delivered everything as promised, including nominating and getting three highly respected and strong constitutionalists confirmed to the United States supreme court.”
Abortion was not the only controversial supreme court ruling last week.
On Thursday it determined that there was a constitutional right to carry a handgun in public for self-defence.
In a separate case the supreme court ruled that if a state uses taxpayer money to pay for students attending nonreligious private schools, it must also use taxpayer funds to pay for attendance at religious schools.
Next week it is likely rule on another big case that could weaken the federal government’s ability to combat climate change by regulating greenhouse gas emissions.
