“Behind me is the highest court in the country. But we are here today at one of its lowest moments, where an illegitimate right-wing majority is willing to take away a constitutional right,” said Senator Ed Markey, Democrat of Massachusetts, in front of the US Supreme Court, on Tuesday (3).
Markey, 75, was speaking to activists protesting the likely overthrow of the country’s abortion rights. A draft decision, leaked last Monday (2), showed that there are five judges of the highest American court in favor of changing the understanding on the subject, although there is still no official decision.
The release of the document caused politicians and activists to attack the court and discuss ways to change the composition of the court, today with six judges considered conservative and three progressive. In general, it also exposed the deterioration of the institution’s image, which has seen a decline in popularity.
In addition to the complaints about the issue under debate, the leak of the draft generated a lot of criticism: the Supreme Court is very closed and strictly controls the processes, which raises suspicions that the document was handed over to the press by someone from the court. who wants to interfere in the decision.
“The court’s credibility comes from the idea that the decisions are the result of a careful process of deliberation, with respect to judicial precedents. Reversing a 50-year-old decision will damage the image that the court is above politics. This is clearly a court activist and conservative who has a political agenda,” says Jonathan Hanson, a doctor of political science and professor at the University of Michigan.
In recent years, more Americans have come to criticize the work of judges. A Pew Research Center poll from January showed that 44% of Americans view the court’s performance unfavorably, while 54% approve of it. The rejection rate is the highest ever recorded in the historical series, which begins in 1985. The strongest increase occurred in the last two years: in 2020, rejection was 29%.
The Gallup Institute also detected the worsening. Their most recent study, from September 2021, found 40% approval and 53% disapproval. The data also show that 54% of Americans say they have great confidence in the institution. Between the 1970s and 2010, this index was always above 60%.
“Complaints against the court and its decisions are common. However, the degree to which the Supreme Court has become a partisan issue is a relatively recent phenomenon. Appointments have become a very important issue in presidential elections and were one of the biggest reasons for the victory of [Donald] Trump in 2016,” says Casey Burgat, a professor of politics at George Washington University.
The rise in rejection was driven by discontent from Democrats and progressives, who saw former President Trump appoint three judges during his term (2017-2021). The Republican made clear in the 2016 and 2020 campaigns that he would use the position to nominate magistrates willing to vote in line with conservative interests, such as vetoing abortion rights and preventing restrictions on access to guns.
To nominate the judges, Trump had help from Republican senators, who prevented then-President Barack Obama from nominating a new name in the final year of his term. Then, in 2020, they did the opposite: they streamlined procedures for him to choose Amy Coney Barrett shortly before the presidential election.
Some Democrats argue that the maneuvers were illegitimate, and some of them, like Senator Markey, point out that the only way to reverse the scenario is with another political move: creating four more seats on the Supreme Court, in order to dilute the conservative majority. Thus, the current score would become 7-6 for progressives, as the current president, Joe Biden, would tend to indicate names with this bias.
However, the measure has little chance of advancing, as it depends on the support of at least 60 senators in Congress. Democrats have 50 seats, and no Republicans are expected to support the proposal. If there was a consensus among Democrats, one way would be to try to change the so-called “filibuster”.
Without the obstacle, weighty issues would only require victory by a simple majority, but even that seems distant: there was no agreement in the party even to approve a package of social investments by Biden.
In 1937, President Franklin Roosevelt attempted to create a mechanism to create new seats, expanding the Supreme Court to as many as 15 seats. The Democrat was frustrated after having several measures barred in court. The expansion was stopped by Congress, but Roosevelt won a partial victory: after the attempt, two judges who used to vote against his proposals changed their position.
“After the Second World War, there was a perception that unlimited political powers led to the horrors of Nazism and fascism, and the constitutional courts gained more strength, as a brake on the other Powers and to expand access to human rights”, says Rafael Mafei, researcher at Laut (Center for the Analysis of Freedom and Authoritarianism) and professor at USP.
In operation since 1789, the US Supreme Court, in recent decades, has tended to change understandings to expand rights, not to restrict them. In 1896, the court approved racial segregation in public spaces, on the grounds that separation would not prevent the provision of equal services to all. Half a century later, in 1954, other judges ruled that the concept of “separate but equal” did not work and that discrimination against people by color was unconstitutional.
Now, the probable reversal of the right to terminate a pregnancy represents, for progressives, a setback via the Supreme Court. “I’m furious that these are five judges who think they can take their extremist views across America. Remember, 69% of Americans want to keep Roe v. Wade,'” Democratic Senator Elizabeth Warren said, citing the decision that secured the access to abortion.
