The question makes theoretical sense. After pulling back from its 1973 decision on the constitutionality of the right to abortion, how far would the US Supreme Court prepare for further backsliding? Among them, civil unions between people of the same gender, the use of contraceptive methods and the marriage of whites and blacks.
As much as some of these predictions may sound absurd today, the United Kingdom’s public radio and TV broadcaster, the BBC, heard about these topics from four experts in constitutional law in the United States.
The podcast “How the Supreme Court is Reshaping the US” aired on the 9th. In time, termination of pregnancy was not considered illegal, but its legality, instead. guaranteed by the Constitution, will now be subject to the legislation of each of the 50 American states.
As a backdrop for this turn, there is the appointment, by then President Donald Trump, of three judges with a clearly conservative profile. They make up a third of the nine with a plenary seat, led to a 6-3 majority, and with it, the podcast title.
The most conservative of debaters, Jonathan Turley, a professor at George Washington University, believes that all of this is exaggeration. With the new composition, decisions were no longer made with a predominance of watery ones (that was not the word he used, although it amounts to the same thing) in order to have an unambiguous majority.
He also states that, in 30 years of academic monitoring by the court, he has never seen the retreat of certain consensuses, as interracial marriage is today.
On the opposite pole, Elizabeth Wydra, president of a progressive NGO that tracks court votes, believes that Americans have everything to fear: “They took away from women the constitutional right to have their own bodies. can be denied”.
She touches on a very sensitive point, the link that was established between access to abortion and the 14th Amendment to the Constitution, which – in 1868, therefore in the 19th century – promoted rights that were denied before the Civil War in the southern slave states. That is, rights as basic as the freedom to work only in exchange for a salary.
In this context, podcast moderator Paul Henley says that citizens are starting to have doubts about whether the Supreme Court is really moving towards a consensus that would characterize the best institutional system on the planet – according to a very old notion. This is because an increasing number of people now believe that judges do not reflect what they think.
Jack Rakove, Stanford political scientist and clearly progressive thinker, believes that the current turnaround occurred because judges gave themselves the right to constitutional reinterpretation, when, in fact, this can only occur from the overwhelming growth of one of the ideological currents in the country. Congress.
Or, even more clearly, “the Constitution changes only by amendment, not by a new interpretation,” said Georgetown University constitutional law professor Randy Barnett,
Conservatives are clearly drawn to much looser rules on gun ownership — just one of the scuffles judges have just dealt with in New York state, where carrying in public places was explicitly prohibited. However, the court ruled in the opposite direction, interpreting that the citizen has the power to protect his physical integrity by carrying a pistol or revolver.
There is one final point on this agenda of possible decisions, loudly raised by Donald Trump in the final weeks of his term in an attempt to reverse Joe Biden’s majority vote. It is the electoral system itself. Podcast participants conclude that the nine judges will not meddle in such a hairy matter and will continue to allow only states to have the right to legislate over the voting system.
But Elizabeth Wydra is keen to leave open the most pessimistic hypothesis. In other words, the new conservative majority poking their nose in to allow, for example, what happened in a state like Georgia in the last presidential elections: Trump wanted to reverse his status as a minority candidate in order to impose himself on the number of so-called big voters. , who are, in the end, the ones who decide who will be the president.
