How far will the US Supreme Court’s “turn to the right” go?

The balance of justice in the United States now leans more distinctly on the right side than on the left, and critics denounce that the blindfold was torn off, a guarantee of its impartiality. With a series of judgments that have shattered the achievements of American society, the Supreme Court of the United States has clearly initiated a shift that will alter the future of Americans. For the left, reversing this trend will be a long and arduous undertaking, experts warn.

The conservative right had been trying for years to take control of the Supreme Court, in order to get rid of judgments and laws that it considered contrary to its values.

Sensing this result, the leftist movements trembled with each election which carried with it the promise of the appointment of other conservative judges, capable of overturning case law which had shaped the socio-political history of the country.

This has been done for some time: the highest Court currently has in its ranks a majority of judges appointed by Republican presidents, ie six out of nine. Three of them were chosen by the former president donald trump.

This Court’s record includes the reversal of federal protection granted to the right to abortion by the historic stop Roe v. wade of 1973. Last June, the Court put an end to affirmative action for the selection of university students, a measure intended to correct the under-representation of young blacks and young Hispanics resulting from the racist and segregationist past of the United States. The Court has also greatly limited the powers of the federal agency in charge of environmental protection, then, at the end of June, she agreed with a woman who demanded the right to refuse to create websites for marriage of same-sex couples.

More conservative ears

This shift did not begin in 2023, and the recent decisions of the Court “have not created any surprises”, notes Pierre Martin, professor of political science at the University of Montreal and specialist in American politics. He recalls that the stranglehold on the Court is an enterprise that the American right began decades ago.

But “it is undeniable that with the recent appointments of Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett, Donald Trump’s choices, the Supreme Court has overturned certain totems of progressive jurisprudence of the 1960s and 1970s,” said Paul Daly, professor of law at the University of Ottawa. If part of the population feared this result, another is completely in favor of it, he points out.

The Court’s recent decisions are really the fruit of recent appointments, notes researcher Véronique Pronovost, member of the Raoul-Dandurand Chair in Strategic and Diplomatic Studies. The arguments pleaded to have judgments quashed, in particular on abortion or positive discrimination, were not new: they simply had a more attentive ear from the magistrates now installed on the bench.

Reversing precedents is not in itself a sign of a court’s dysfunction: it happens in all countries, even in Canada, recalls Professor Daly, who also holds his university’s research chair in administrative law and governance. On the other hand, there are not many countries where judges are appointed to the Supreme Court with the specific objective of breaking precedents, he continues. “That’s very American. »

Many changes can be expected, warns Professor Martin.

The next targets

Paul Daly anticipates attempts to limit the powers of the president and those of federal administrative agencies, and he believes that the Supreme Court of the United States will have the appetite to review the rules on public funding of religious schools.

For their part, Professor Martin and researcher Pronovost believe that the highest court in the country could look again at the right to marriage for same-sex spouses.

If the Supreme Court is closely scrutinized, we must not forget the 13 influential courts of appeal, since they decide cases that are eminently political. The Trump administration has also managed to create an ideological reversal within three of them, which have gone from majority Democrats to majority Republicans, explains Pronovost.

Not only did Trump appoint a significant number of judges, almost the same number in 4 years (54 judges) as Democratic President Barack Obama in 8 years (55 judges), he also chose very young candidates who will sit there for decades.

As for the Supreme Court, Paul Daly recalls that its judges sign unanimous decisions in many causes, their opinions not being fractured according to their political ideology. The dividing line is seen especially in highly politicized files, he notes.

For example, in decisions rendered this year on the right to vote, the Court notably refused to invalidate the protections against “gerrymandering”, a division which would have nevertheless benefited the Republican Party.

On the other hand, a change holds the attention, points out Professor Martin: before, judges belonging to the right corner of the political spectrum could still line up in the liberal camp on certain subjects. This would no longer be the case, note MM. Martin and Daly, seeing liberal justices, like conservatives, increasingly confined to the two political extremes.

Professor Martin also recalls that this turn to the right of the United States, if it is dependent on social conservatism, is also motivated by economic conservatism, financed by billionaires advocating the reduction of government control over their economic activities. In short, it must be understood on both fronts: social issues provide an electoral base, the shift is aimed at other more economic objectives.

Possible return of the pendulum

According to Professor Daly, given the current age of justices – those appointed by Trump are young, between 51 and 58 – it will take several elections before the Democrats reverse the trend in the Supreme Court.

“It’s going to be very difficult to reverse and it’s going to take time,” adds Professor Martin. Judges in all courts will be confronted with the new case law and will have to apply it.

But the expert Daly notes that even if the Supreme Court remains dominated for a time by conservative judges, the states also have powers and they can pass more progressive laws. All is not lost for Democrats, he said. “The battlefield may have changed. »

Without forgetting that the Democrats do not sit idly by: the President Joe Biden has chosen to embark on the race for appointments in an attempt to rebalance the judicial landscape to avoid, as much as possible, the imposition of a conservative and Christian vision of rights and freedoms. In February 2023, after just over two years in office, he had appointed 100 judges, compared to 88 for Trump at the same stage of his presidency, underlines Mme Pronovost.

The US Senate must, however, approve the president’s choices for the High Court. The Democrats currently hold a weak — and therefore fragile — majority there.

The current President is therefore extremely aware of the challenges that the politicization and polarization of the courts entail in terms of public and social policies, notes Pronovost. The impact of his actions should be seen over the next few years.

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