By Kenneth Tiven
Traditionally, Supreme Court justices in the USA have let written decisions explain their position on matters of law and philosophy. However, tradition is less a factor in America than ever before, as recent behaviour by three justices of the highest court have made clear.
Justice Samuel Alito has become the latest US Supreme Court justice to defend the panel’s political independence, labeling criticism of recent ultra-conservative decisions as attempted intimidation. Alito spoke at the friendly University of Notre Dame, a Catholic institution, as did Justice Clarence Thomas in a rare public appearance from a conservative justice who rarely speaks in court. Justice Amy Comey Barrett spoke in Lexington, Kentucky on the same platform with Republican Senate Leader Mitch McConnell.
All of this comes as recent polls by Gallup and Marquette University Law School indicate that show public confidence in the US Supreme Court is at an all-time low. What has raised the volume are recent “shadow docket” rulings, especially in a Texas case that allows a ban on all abortions after the detection of a so-called heart beat, not withstanding that the embryo has no heart at 6 weeks.
Abortion as a woman’s right has become a major issue among right wing voters, especially Christian evangelicals who want all abortion to cease, not withstanding the philosophical conflict within conservative circles from those who want the government to stay out of health care and other issues. Critics of the court decision took it as a de facto reversal of Roe v Wade, the 1973 ruling that protects a woman’s right to abortion.
All three are among the conservative majority that allowed the nation’s most extreme abortion law to take effect last month in a 5-4 decision. Alito said, “The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways….It’s hard to see how we can handle most emergency matters any differently.” This refers to increasingly common emergency applications that come before the justices outside regular sessions.
In a scathing dissent, the liberal Justice Sonia Sotomayor wrote: “The court silently acquiesced in a state’s enactment of a law that flouts nearly 50 years of federal precedents. The act is a breathtaking act of defiance – of the constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas.”
The court, Barrett insisted, in her speech, “is not comprised of a bunch of partisan hacks”, while judges must be “hyper-vigilant to make sure they’re not letting personal biases creep into their decisions.” Yale Law School Professor Scott Shapiro tweeted his disdain for her point, “Supreme court justice Amy Coney Barrett expressed concerns on Sunday that irony is dead.”
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Even veteran liberal Justice Stephen Breyer has spoken publicly, telling CNN he believed the court was driven by judicial philosophy, not politics.“It isn’t really right to say that it’s political in the ordinary sense of politics,” said Breyer, 83.
The Court is back in session October and early December and will hear arguments in an appeal by Mississippi against a lower court ruling. The Mississippi law bans abortion after 15 weeks and was crafted to make it easier for the highest court to overturn Roe v Wade.
America’s two main political parties together represent about 60% of the voters. The largest block are Independents and non-voters, who get involved on issues of particular interest, but otherwise do not invest in understanding the American system from a historical or philosophical position. The Trump presidential phenomenon was to tap, among other things, into this group on the basis of attracting people dissatisfied with their diminishing power in a changing American society.