De machtsverhoudingen binnen het Hooggerechtshof van de Verenigde Staten zijn sterk veranderd sinds voormalig president Trump enkele nieuwe rechters heeft benoemd. Dr. Türker Ertas, onderzoeksfellow aan de Universiteit Maastricht, stelt in deze analyse dat een Hooggerechtshof met een overwegend conservatieve meerderheid niet alleen een rem op nieuw erkende rechten kan zijn, maar ook een delegitimatie van rechten die al door het Hof zelf waren vast gesteld.
It all started on 13 February 2016 with the death of Antonin Scalia, a strict originalist and textualist, serving as an associate justice in U.S. Supreme Court since 1986. He was part of the conservative wing of the Court, as he was nominated by a Republican President, Ronald Reagan. When Scalia passed away, an opportunity for nominating and appointing a Supreme Court justice arose for the Democratic President Barack Obama. If he managed to confirm his nominee to the Senate, it would be his third appointee for the Court during his eight-year term of office. However, there was a huge problem for the Democratic President: a Republican majority in the Senate. Additionally, there were just eight months left until the next presidential elections. Therefore, on 16 March 2016, he acted strategically and nominated a relatively aged (63) federal judge with a moderate judicial philosophy: Merrick Garland.
However, the Senate majority leader Mitch McConnell pointed out the upcoming presidential election and declared that the GOP senators were not going to vote for Garland. Since there were 4 liberal justices (Ginsburg, Breyer, Kagan and Sotomayor) and 4 conservative justices (Kennedy, Thomas, Alito and Roberts) in the Supreme Court, filling the vacancy in the Court was of vital importance to both Democrats and Republicans. The last time the Senate controlled by a Republican majority confirmed the nominee of a Democratic President was in 1895. Ultimately, no proceedings were held regarding Garland’s nomination. The vacancy was filled by a conservative federal judge Neil Gorsuch, who believes that the Constitution should be interpreted as originally intended by the framers. He was nominated by the recently inaugurated Republican President Donald Trump and confirmed by a Republican-controlled Senate by a vote of 54-45 on 7 April 2017.
The Impact of Divided Government on the Fate of the (Living) Constitution: The Confirmation of Anthony Kennedy
When we speak of the ideological spectrum of the Supreme Court in April 2017, the actual distribution was 4-1-4, as there was a median justice who had the swing votes in several judgments: Anthony Kennedy. On 1 July 1987, the retirement of associate justice Lewis Powell opened the door for Republican President Ronald Reagan to appoint the second associate justice during his 8-year presidency. When Powell retired in 1987, Republicans no longer had the majority in the Senate. This political composition led to the rejection of the nomination of Robert Bork by a vote of 58-42 on 23 October 1987. Serving as a judge on the federal appeals court in the District of Columbia, Bork was known for his conservative legal philosophy as a strict originalist. He was mainly opposed to privacy rights on the ground that they have no basis in the Constitution. Bork also had the lead role in the “Saturday Night Massacre” during the Watergate Scandal as he dismissed Watergate special prosecutor Archibald Cox at the request of Richard Nixon while acting as Attorney General. The Supreme Court vacancy was eventually filled by another conservative yet moderate judge, Anthony Kennedy who was confirmed by the Senate by a vote of 97-0 on 17 February 1988.
The Legacy of Anthony Kennedy
When Kennedy was appointed as an associate justice of the Supreme Court, no one might have predicted that he would have the swing votes on several landmark decisions by siding with the liberal wing of the Court. His median justice role was quite prominent during the Roberts Court Era after the retirement of Sandra Day O’Connor in 2005. He had critical swing votes on matters relating to abortion, same-sex marriage, affirmative action, civil rights, the death penalty, campaign finance, federalism, the First Amendment, gun rights, immigration, national security and the separation of powers. During the Roberts Court Era, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties which applies to same-sex couples in the same manner as it does to opposite-sex couples (Obergefell v. Hodges, 2015); that denying same-sex couples the federal recognition of marriage violates the Fifth Amendment’s guarantee of equal protection (United States v. Windsor, 2013); that state laws imposing an “undue burden” on a woman’s right to terminate a pregnancy is unconstitutional (Whole Woman’s Health v. Hellerstedt, 2016); that affirmative action within the context of consideration of race in the admissions process to a university does not violate the Equal Protection Clause of the Fourteenth Amendment (Fisher v. University of Texas, 2016); and that the Eighth Amendment prohibits the states from imposing the death penalty for crimes other than homicide (Kennedy v. Louisiana, 2008).
Along with these judgments reflecting a liberal ideology, the Roberts Court also has judgments with conservative character, holding that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment (Citizens United v. Federal Election Commission, 2010); that Section 4 of the Voting Rights Act which imposes several requirements regarding the conditions for eligible voting districts is unconstitutional under the Fifteenth Amendment and conflicts with the constitutional principles of federalism and equal sovereignty of the states (Shelby County v. Holder, 2013); that the provisions of the District of Columbia Code prescribing a restriction on registering handguns and a requirement to keep guns in the home disassembled or non-functional with a trigger lock mechanism violate the Second Amendment (District of Columbia v. Heller, 2008); that President Trump’s proclamation placing entry restrictions on foreign nationals from specified countries does not conflict with the president’s statutory authority or violate the Establishment Clause (Trump v. Hawaii, 2018). In all of these cases, the liberal and conservative Justices were divided as a whole with one exception, who had the swing votes and thereby the pivotal role in the judgments: Kennedy.
Towards the Destruction of the Legacy? The Retirement of Kennedy
In late June 2018, 81-year-old Kennedy announced that he was retiring from the Supreme Court as of 31 July. This surprising decision aroused the ire of liberals as his departure would give President Trump the chance to replace Kennedy with a more reliable conservative justice and fundamentally reshape the case law of the Court on controversial issues such as abortion. President Trump nominated another conservative federal judge: Brett Kavanaugh. On 6 October 2018, Kavanaugh was confirmed by the Republican-controlled Senate by a vote of 50-48 in the shade of severe confirmation hearings peculiarly around a sexual assault allegation that he vehemently denied. Falling to the right of Kennedy in the ideological spectrum, Kavanaugh would enable a rightward shift in the Court’s jurisprudence for years or decades to come.
A New Median Justice on Stare Decisis Grounds: John Roberts
Even after the confirmation of Kavanaugh, it was not the end for the liberal or progressive case-law of the Supreme Court as the Court surprisingly had a new median justice: John Roberts. Chief Justice Roberts unexpectedly joined the liberals in several cases in October 2019 term including abortion (June Medical Services LLC v. Russo, 2020) and restrictions on religious services due to the COVID-19 pandemic (South Bay United Pentecostal Church v. Newsom, 2020). However, this does not mean that the Chief Justice was transforming into a more liberal character. He sided with the liberal justices on issues such as abortion based on stare decisis grounds. Therefore, the ideological and institutional balance in the Court created by him was very fragile.
The End of an Era: The Death of Ruth Bader Ginsburg and Confirmation of Amy Coney Barrett
On 18 September 2020, the U.S. Supreme Court lost one of its most liberal/living constitutionalist justices, namely Ruth Bader Ginsburg. The existing paper-thin liberal wing of the Court was at stake, as well as the liberal case law of the Court on reproductive rights, abortion, same-sex marriage, voting rights, affirmative action, criminal justice, the power of the presidency, the rights of immigrants, tax rules and healthcare. Replacing Ginsburg with a relatively young conservative justice would substantially shift the ideological balance of the court, generating a bulletproof conservative majority of five justices + moderate conservative Roberts. This sort of political distribution in which one ideology predominates had not been seen in the Court for decades. Trump eventually nominated 48-year old federal judge Amy Coney Barrett. Barrett was known for her originalist and conservative judicial philosophy and she even clerked for Scalia once at the Supreme Court. On October 26, the Senate confirmed Barrett’s nomination by a vote of 52-48, just about a week before the Election Day and 30 days after she was nominated. Chuck Schumer referred to the nomination process as a “cynical power grab”. He even signalled a reform to the structure of the Supreme Court by stating that “nothing is off the table for next year”.
An Inevitable Ending: Overturning of Roe v. Wade
The involvement of Coney Barrett has shifted the tendency of the Supreme Court on several issues. In a 5-4 decision, the Court overturned its precedent on restrictions on religious services due to the COVID-19 pandemic by suspending the enforcement of New York Governor Andrew Cuomo’s executive order that limited the number of individuals who could gather in places of worship (Roman Catholic Diocese of Brooklyn v. Cuomo, 2020). The Court denied issuing an injunction relief to a Texas law that bars most abortions after six weeks. Recently, a leaked draft of the Supreme Court’s deliberations in Dobbs v. Jackson Women’s Health Organization reveals that the Court will rule in favour of a Mississippi Law which bans most abortions after 15 weeks of pregnancy. Moreover, this leaked judgment stands for overturning the Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) rulings which have established a constitutional right to abortion. Justice Samuel Alito’s draft opinion, which would overturn Roe v. Wade, states: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision....” Overturning Roe v. Wade will make way for the conservative-held states to restrict or ban abortion as the leaked judgement means that the states have the full power to regulate abortions.
Conclusion: What’s next?
The conservative tilt created by the Trump-appointed justices might draw a new legal landscape that can last at least 30 years. The retirement of Justice Stephen G. Breyer and replacement of Judge Ketanji Brown Jackson in late June will not even make any substantial difference since the Court will ideologically remain at 6-3. The recent liberal case law of the Court relating to same-sex marriage, affirmative action and the death penalty is at stake now. Moreover, the Democratic-controlled Congress has nothing to change this fate because of the median/conservative democrats like Joe Manchin and the filibuster procedure in the Senate. Recently, the Senate voted 51-49 to reject the Women’s Health Protection act with West Virginia Democrat Joe Manchin voting with Republicans. Additionally, any federal law guaranteeing a right not explicitly prescribed in the Constitution can be easily struck down by the current composition of the Supreme Court. A decline in American living/ongoing constitutionalism by the liberal case law of the Supreme Court seems to be inevitable. Since the U.S. Constitution is known for its considerable vague character and the Constitution grants the residual powers to the states, the Supreme Court performs as a principal constitution designer at federal and even state levels by interpreting the ambiguous provisions of the Constitution. A substantial part of the civil rights achievements and advancements in U.S. political history were either initiated or promoted by the Supreme Court. A Supreme Court having a predominant conservative majority not only means a cessation of newly-recognized rights but also delegitimizing the rights which were already established by the Court itself.
Dr. Türker Ertas is Visiting Post-Doc Research Fellow at Maastricht University, Faculty of Law, and Assistant Professor of Comparative Constitutional Law at Dokuz Eylül University, Faculty of Law, Izmir, Turkey