Roe v. Wade and the Politicised Nature of the US Supreme Court
Updated: Aug 21
Ask a layman to name a legal case, and Roe v. Wade is likely among the first to come up, alongside the likes of Bush v. Gore and Donoghue v Stevenson (that's a law student one). Yet almost half a century post-ruling, the case continues to be challenged for its very legal foundation. Brett Kavanaugh's appointment to the US Supreme Court (SCOTA) in 2018, in tandem with the politicised nature of the US judiciary, may be enough to see these challenges succeed for the first time.
In short, Roe was a landmark Supreme Court decision that found a constitutional right for women to seek abortion in the United States, without excessive government restriction. Prior to the decision in 1973, abortion was deemed a crime by the laws of most states, with very restrictive exceptions. Here's why everything is only now coming to the fore.
Roe is based on, but not guaranteed by, the US Consitution.
The decision to legalise abortion in Roe is based on the non-intervention of government in citizens' private lives - a 'right to privacy'. The force of this right stems from the Constitution, giving it power beyond mere legislative authority. Its instability, however, arises from the fact that the court implied it from the Constitution.
Rather than the Constitution clearly stating 'all citizens have a right to privacy', SCOTA in 1973 'read in' the right as an extension of other clearly stated rights, such as that of personal liberty. The danger of an implicit right is that it's left open to re-interpretation. If a future SCOTA decides to revise the view in Roe, it can. And today, it very well may.
SCOTA as moral arbiter.
The role of SCOTA as the land's highest court means that it is charged with deciding legal points at the very boundaries of precedence and literature. When it comes to issues which are both legally grey (not explicit) and beyond the legislature (constitutional interpretation), the court is thrust into an awkward role as moral arbiter.
In my opinion, this role comes with the responsibility to update the law in accordance with changing social norms.
In Griswold v. Connecticut, for example, it could have been argued either way as to whether the use of contraception should be a matter for the state to regulate. Yes, the concept of denying condoms sounds ridiculous today, but the very fact that this once was both a social and legal norm speaks to the importance of SCOTA's moral role.
Judges are independent, but not really.
The problem with being moral arbiter is that, apart from prevailing social standards at a specific point in time, there really isn't any guide for how a judge should reason his or her decision. The most likely result is that they will apply their own sense of morality to the issue at hand. And with that, personal political views unfailingly come into play.
This issue is compounded by the fact that judges are nominated by the President who, subject to checks and balances, will choose a judge with a history of decisions most aligned with his own political stance. That's how we arrive at the supposed 'composition' of the Court; the number of judges nominated by either Democratic or Republican presidents. Analyses here and here.
A new composition.
Antonin Scalia's death in 2017 was a pivotal moment as far as 'composition' was concerned. Prior to his death, SCOTA was 5:4 in terms of nominating party (Rep:Dem), but 4:5 in favour of abortion, given Anthony Kennedy's prior decision to uphold Roe in Planned Parenthood v. Casey. Kennedy is the only remaining Republican-appointed judge who decided in favour of upholding Roe, contrary to mainstream Republican ideology.
President Obama's nominee, Merrick Garland, would have put that figure at 3:6, a serious threat to pro-life ideology. This forecast contributed to the controversial decision by the Senate to refuse even a hearing for Garland.
As it turned out, the Republican strategy worked, allowing President Trump to appoint two new judges, including a firm conservative replacement for Kennedy in Kavanaugh. This leaves the composition at 5:4 (Rep:Dem) both by nominating party and likelihood to decide against Roe. On the face of it, we're back where we started. In reality, however, everything has changed.
The knowledge of this new composition has emboldened pro-life states to legislate laws - the most notable of which is the heartbeat bill - in direct challenge to Roe, in the hopes that it will make its way up the appeals system to the new Supreme Court.
The Court doesn't have to hear it, as it has discretion as to which cases to decide. As such, the process of overturning Roe may take years or even decades. In the meantime, with SCOTA in a firm pro-life majority, pro-life legislatures all across the country will continue to chip away at the colossal prominence that is Roe.
Title image source: Vice.