From your US correspondent: the Supreme Court of the United States
31 January 2020
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. 
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.
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…).
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