A week of controversial decisions like few in the history of the US Supreme Court.
As every June, before the summer recess, the country’s highest constitutional court releases its opinions on the most important cases it has analyzed throughout the year: sentences with broad political, social and economic implications that could impact the lives of millions of people.
This month was no exception and in the last three days the Supreme Court has given its verdict in three cases that have generated great expectations, tensions and debates.
This Friday (24), as the leak of an earlier opinion had suggested in May, the court decided to allow abortion to be recognized as a constitutional right. A day earlier, in a country experiencing a wave of mass shootings, the Supreme Court decided to limit the restrictions that states can impose on their inhabitants to carry firearms in public. And on Tuesday, in a society that has prided itself on its secularism since its founding, the court decided to shorten the separation of church and state by allowing public funds to be used to maintain religious schools.
These are decisions that, individually and collectively, have raised numerous questions among academics, historians and Supreme Court scholars. They point out that these positions reflect a shift towards “extreme conservatism” and a “politicization” of one of the most respected institutions for years in the United States.
“It’s an extreme and dangerous path that the Court is now taking us on,” President Joe Biden said on Friday. “With this decision [sobre o aborto], a conservative majority of the Supreme Court shows how extreme it is. How far are they from most of this country,” he added.
A “more political” court
This week’s verdicts once again shed light on the court’s independence and its proximity to certain political positions.
“The perception is not of a court that is half political, half legal, but all political,” Keith Bybee, vice dean of the law school at Syracuse University in New York State (USA), tells the BBC.
A more than decade-long study published earlier this month in PNAS, the prestigious journal of the US Academy of Sciences, indicated that the court over the past two years “has become much more conservative than the American public.”
“The distance between the Supreme Court and the public has grown since 2020, with the court moving from a position very close to the average American to a position more conservative than most Americans,” the study says.
The year, according to the publication, is not random: it was when the composition of the Supreme Court changed radically under Donald Trump, who ruled the country from 2017 to 2021.
The then president had the extraordinary opportunity to appoint three judges during his administration, which radically transformed the balance between conservatives and liberals that had existed until then.
Trump has made a point of appointing judges with conservative and religious views, most of them from the Federalist Society, an organization that advocates a literal reading of the Constitution.
Thus, a “supermajority” of six conservative judges against three of more liberal positions was solidified.
A study by the University of Chicago, Illinois (USA), has shown that judicial decisions since then have also become more likely to favor religious concepts and themes over what were once considered individual liberties.
Although Trump changed the composition of the court, jurists point out that the Supreme Court’s move towards conservatism was a process that has consolidated over the years: of the 18 confirmed justices from 1969 to the present, 14 have been nominated by Republican presidents and only four by Democrats.
However, legal experts point out that today’s conservative judges are nothing like those of decades past: in fact, it was five Republican judges who joined two Democrats in legalizing abortion in 1973 Roe v Wade, the precedent that recognized the abortion as a constitutional right.
According to the PNAS study, the court “is now more like the GOP in its ideological stance on key issues.”
And while during 2021 the Supreme Court did not make very controversial decisions, the numerous cases it ruled on this week drew attention to an apparent speed to change some laws that were already part of American society.
“The most surprising thing about these rulings is how quickly the Supreme Court’s conservatives are moving to bring about far-reaching and controversial changes,” says constitutional law professor Maya Sen on the Harvard University website in Massachusetts.
Understand the three controversial decisions announced this week.
1- Roe vs Wade
Friday’s Supreme Court ruling overturned a nearly 50-year tradition in which abortion was considered a constitutional right in the United States.
The conservative majority concluded that “the power to regulate abortion” must be returned “to the people and their elected representatives”, according to the text drafted by Judge Samuel Alito.
The origin of the sentence goes back to a specific case, that of Dobbs v. the Jackson Women’s Health Organization, in which a Mississippi law that prohibits abortion after 15 weeks, including in cases of rape, was challenged.
Lynn Fitch, Mississippi’s attorney general, initially asked the Supreme Court to uphold her state’s law, but then went a step further, calling for the historic 1973 Roe v Wade decision to be overturned.
Of the judges who voted to repeal abortion rights, three were appointed by Trump and the rest by other Republican presidents.
The three progressive magistrates who spoke out against it argued that “the court changes course today for one reason and one reason only: because the composition of this court has changed.”
They said they felt “sorrow for this court, but even more so for the millions of American women who today have lost fundamental constitutional protection.”
2- Greater access to weapons
On Thursday, the Supreme Court overturned, by six votes in favor and three against, a more than 100-year-old law that restricted the carrying of weapons on public roads in New York State.
Until now, carrying a firearm in public required a special license, and in order to obtain one it was necessary to present justifiable cause (similar to what happens in other states, such as California, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island).
Representing the majority that supported the Supreme Court’s decision, Justice Clarence Thomas argued that the Constitution protects “the right of an individual to carry a firearm for self-defense outside the home.”
Thus, it considered that requiring citizens to demonstrate a justified cause to exercise it in New York violates the Second Amendment of the Magna Carta.
That amendment, drafted in 1791 and the interpretation of which is now the subject of debate, includes “the right of the people to own and bear arms”, although it says it is designed to make them part of a “well-regulated militia”.
The Supreme Court ruling is expected to be used to strike down other restrictive gun ownership laws across the country, which would affect a quarter of the estimated 330 million Americans.
In the United States, there are more than 390 million weapons registered under civilian names.
In 2020 alone, more than 45,000 Americans died from firearm-related injuries, including homicides and suicides.
3 – Money for religious schools
On Tuesday, the Supreme Court ruled that the eastern state of Maine could not prevent public funds from being used by schools that promote religious education.
The vote, again, was six votes in favor and three against. In the opinion of most judges, Maine discriminated against religious schools for their teaching of the faith. “Maine’s requirement […] violates the free exercise clause of the First Amendment [que reconhece a liberdade religiosa]”, wrote Judge John Roberts.
While arguing that Tuesday’s decision is in line with other recent measures by the Court to expand religious freedom, progressive judge Sonia Sotomayor accused the conservative majority of tearing down “the wall of separation between Church and State that the architects of the Constitution struggled to build”.
“As a result, in just a few years, the court has changed constitutional doctrine from a rule that allows states to refuse to fund religious organizations to one that requires them, in many circumstances, to subsidize religious indoctrination with taxpayers’ money.” , pointed out.
This text was originally published here.
