From your US correspondent: the Supreme Court of the United States

31 January 2020 by

The US Supreme Court has had its home here since 1935

Last autumn I was privileged to spend six weeks in the United States as a scholar on the Pegasus Programme. This gave me the opportunity to learn a great deal about the similarities and contrasts between our legal systems, as well as the latest developments across the Atlantic.

In this piece I will tell you about what I learned about the US Supreme Court — its history, its role and what the Presidency of Donald Trump may mean for its future.

The Supreme Court

The Supreme Court is the highest court in the United States and acts as guarantor and arbiter of the Constitution. It has the power to establish (and extend) the content of constitutional rights and to strike down not only government acts, but also primary legislation incompatible with those rights.

The Court’s procedure shares the emphasis on writing over speechmaking that is characteristic of appeal courts in the US. Each side is given only 30 minutes for oral argument — and this is generous by US standards, where many state appeal courts allow only 15. Appeal hearings tend to involve a barrage of questions from the bench, where the advocates are quizzed on the key parts of their reasoning and the consequences of the position they urge on the court. Judges I spoke to were almost unanimous in agreeing that it was almost always on their written submissions (known as ‘briefs’) that the parties won or lost the case.

But it is the way that Justices are appointed to the Court that represents perhaps the most significant contrast with the UK. Article II of the Constitution empowers the President to nominate a Justice, who must then be confirmed by the Senate. Once confirmed, the Justice remains in place for life (unless they retire). As a result, appointment to the Court is an intensely political matter. Who holds the balance of power in the executive and legislature has great ramifications for the composition of the judiciary.

The right to an abortion

One of the Court’s most famous decisions is Roe v. Wade 410 U.S. 113 (1973), where it was established that the Constitution protects a pregnant woman’s right to choose to have an abortion without excessive government restriction.

The plaintiff (as the claiming party is still known in the States) — real name Norma McCorvey — had become pregnant with her third child and wanted an abortion. However, she lived in Texas, one of a number of states where abortion was illegal except when necessary to save the mother’s life.

In January 1973, by a 7–2 majority the Court held that the Constitution included a right to privacy that protects a pregnant woman’s right to choose whether or not to have an abortion.

The Fourteenth Amendment

The home of this right was found to be the Due Process Clause of the Fourteenth Amendment. This Amendment has a fascinating history — passed in 1868 in the aftermath of the American Civil War, it sought to establish citizenship rights and equal protection under the law for former black slaves.

As well as ending the institution of slavery itself, a key concern of the abolitionists in the aftermath of war was to nullify the infamous decision of the Supreme Court in Dred Scott v. Sandford (1857), which had held that black people

are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.

As a result, a slave who was taken into free territory but then brought back by his owners to slave-holding Missouri had not gained his freedom — he remained a slave.

In theory, at least, the Fourteenth Amendment established the rights of former slaves on equal footing to their former masters. Tragically, the subsequent backsliding in the South meant that these rights proved illusory until the successes of the Civil Rights Movement in the 1950s and 1960s, culminating in the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 (though the multifarious consequences of the oppression of African Americans are still being felt today).

The Due Process Clause of the Fourteenth Amendment provides that

… nor shall any State deprive any person of life, liberty, or property, without due process of law.

This is based on a similar clause in the Fifth Amendment which was added by James Madison at the behest of the state of New York. The language deliberately harks back to that of Magna Carta and its purpose is to protect the rights of the individual from being unduly infringed by the state.

In Roe v. Wade, the Court drew on earlier cases involving parental control over bringing up children and the use of contraception and found that these established that the guarantee of liberty under the Fourteenth Amendment included a right to privacy.

The Court then reasoned that outlawing abortions would infringe this right for several reasons: having unwanted children may force upon the woman a distressful life and future, it may bring imminent psychological harm or tax the mother’s physical and mental health and because there may be distress for all concerned with the unwanted child. This reasoning was based on a firm rejection of the notion that a fetus is a “person” within the meaning of the Constitution.

The Court held that the right to privacy in this context was not absolute. During the first trimester, the government could place no restriction on a woman’s ability to choose to abort a pregnancy other than minimal medical safeguards. From the second trimester on, evidence of increasing risks to the mother’s health gave the state a compelling interest and medical regulations could be enacted so long as they were reasonable and “narrowly tailored” to protecting mothers’ health. Since the beginning of the third trimester was normally considered to be the point at which a fetus became viable under the medical science available at the time, the Court ruled that from this time onwards the state had a compelling interest in protecting prenatal life and could legally prohibit all abortions except where necessary to protect the mother’s life or health.

As to the measure in question, the Court concluded that

A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment. [164]

Political faultlines

The decision is a key divide in American politics. In a May 2018 Gallup poll 48% of Americans described themselves as pro-choice and 48% as pro-life. The issue has become a Shibboleth for American liberals and conservatives, with each Republican President stating his opposition to the decision and each Democratic occupant of the White House expressing his support. It is also interesting (and perhaps surprising) to note that the plaintiff in the original case has disavowed the decision.

During much of the Obama administration, the court was generally seen to be evenly divided on ‘political’ questions, with four ‘liberal’ Justices, four ‘conservatives’ and one ‘swing vote’, Justice Anthony M. Kennedy, a moderate ‘conservative’, but one who would vote with the ‘liberals’ on certain issues.

An example of how this has played out are the decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010). These cases relate to the rights of gun owners — another major political faultline.

The reasoning of the Court is significantly more favourable to conservatives than liberals — the two decisions established that the Second Amendment protects an individual’s right to keep and bear arms and that this right is binding not only on the federal government but also on the states (via the Due Process Clause).

But the price of Justice Kennedy’s vote with the ‘conservatives’ was a passage in Heller which stated that

Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

The decision therefore permits at least some regulation on the ownership of firearms.

In February 2016 the leading conservative Justice, Antonin Scalia, passed away. President Obama nominated Merrick Garland as his replacement, a Judge on the important US Court of Appeals for the District of Columbia Circuit. This was the first time in almost a hundred years that a Democratic President had had the opportunity to appoint a Justice to the Court while the Republicans controlled the Senate. A great deal was at stake — particularly given the role that Justice Scalia had as the leader of the ‘conservative’ tendency — and it was clear that his replacement by a ‘liberal’ would have shifted the Court’s ideological balance perhaps for many years to come.

However, this was the dying days of the Obama administration. Sensing an opportunity, Republican Senate leaders declared that because the seat on the Court had become vacant during an election year, the Senate would not even consider a nomination from the President. There was nothing that the Democrats could do. The nomination expired at the end of that Congress at the start of 2017.

Whether you see the move by the Republicans as clever or cynical is likely to depend on your point of view, but even their supporters must surely baulk at the double-standards expressed by Senate Majority Leader Mitch McConnell, who was asked in May 2019 what he would do if a Justice were to die in 2020 (an election year) and stated with a smile that the Senate would fill such a vacancy, a comment he repeated the following month.

When President Trump was propelled to the White House he retained a majority in the Senate. This gave him the opportunity to confirm Neil Gorsuch as the replacement for Justice Scalia by the end of January the following year.

This appointment was ‘like for like’ (‘conservative’ for ‘conservative’). The important change came next. In July 2018 Justice Kennedy retired from the Court at the age of 82. President Trump nominated as his replacement Brett Kavanaugh, another Judge of the DC Circuit Court of Appeals. Despite a fraught confirmation process which included testimony from several women who said that they had suffered sexual assault at his hands, he was confirmed by the Senate by a vote of 50-48 and sworn in in October 2018.

This is likely to have significant ramifications. With the ‘conservatives’ on the Court now holding a firm 5-4 majority, the jurisprudence of the Court is likely to move rightward on a whole host of issues.

One is the right to an abortion. During the course of 2018, a number of state legislatures have advanced strict limits on abortion in those states. For example, Iowa’s ‘heartbeat’ law prohibits doctors from performing an abortion if a fetal heartbeat can be detected (which can happen as early as six weeks), with exceptions in the case of certain instances of rape, incest or medical emergency. In Louisiana the doctor must obtain admitting privileges from a nearby hospital to carry out the procedure. It appears that only one doctor in Louisiana has been able to meet this requirement — rendering it almost impossible to obtain an abortion in this state.

This appears to involve an unlawful burdening of the right to an abortion established in Roe v. Wade and the Louisiana provision is also almost identical to a Texas law that the Supreme Court struck down back in 2016. But the Court is different now. In October 2019 it decided that it would hear a case concerning the Louisiana law.

This is not all. Another issue now back before the Court is gun control, where the Court is considering its first case in a decade on the right to bear arms. This will probably engage aspects of the issue left vague by the decisions in Heller and McDonald.

What this may all mean is still unclear — but liberals are unlikely to feel optimistic. The Republican domination of the White House (since 2016) and the Senate (since 2014) is likely to have significant consequences for the American legal system. The elections later this year will be very important indeed.

Jonathan Metzer is a barrister at 1 Crown Office Row. He tweets @JonathanMetzer.

1 comment;


  1. spamletblog says:

    I’m surprised the various law societies don’t insist on judges being impartial. Anyone who’s politics is obvious enough for a politician to select them, should be automatically banned from being a judge!

    More importantly though: political parties were never intended to be allowed to capture all three branches of government. George Washington made a well reasoned warning against allowing take over by political parties, in his farewell letter on his retirement. He predicted that human nature would lead to factionalism and tit for tat between the parties, that would allow the rise of a tyrant with the aid of a foreign power. He was, of course, ignored, and now we live in exactly the times he predicted.

    The really sick thing about it all is the way the media quote Washington on the tyrant takeover bit, but not on the reasoning against parties that led to it, so they all profess to be baffled as to how the separation of powers has completely failed and they are powerless to hold each other to account!

    While parties are allowed to capture Congress and choose both who gets to be put forward for election, and then who gets to be a judge, there can never be democracy or a fair tribunal in the USA (and, I might add, most of that applies here too, but for the selection of judges, which, so far, seems to have led to a fairly thoughtful Supreme Court…).

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV Housing HRLA human rights Human Rights Act human rights conventions human rights damages Human Rights Day human rights decisions human rights news Human Rights Watch Huntington's Disease immigration Immigration/Extradition immunity India Indonesia Infrastructure Planning Committee Inhuman and degrading treatment injunction Inquest Inquests insurance intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty Iran Iranian nuclear program Iraq Iraq War Ireland islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland legal aid legal aid cuts legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberty library closures Libya licence conditions life sentence lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Taylor luftur rahman MAGA Magna Carta Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation Maria Gallastegui marriage material support maternity pay Matthew Woods Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical negligence medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness MGN v UK michael gove Midwives migrant crisis military Milly Dowler Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder music Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience news new Supreme Court President NHS NHS Risk Register Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London Offensive Speech oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution Personal Injury personality rights perversity PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning system plebgate POCA podcast points Poland Police police investigations police liability police powers police state police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings post office power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radicalisation Radmacher Ramsgate rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg sumption super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: