Image: Chief Justice John Roberts
- Dissent: The Radicalisation of the Republican Party and Its Capture of the Supreme Court, by Jackie Calmes, Twelve 2021
- Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months that Transformed the Supreme Court, by Linda Greenhouse, Random House 2021
This is a thoughtful analysis of how the appointment of judges to the US Supreme Court has been influenced by the political civil war between Democrats and Republicans taking place in the US during the past four decades and how this is damaging the rule of law at state level and federally. The review focuses on the justices who are appointed and what happened in the Congressional hearings which assessed them and decided whether to appoint them or not. Just as the presidency in the US bounces back and forth between Democrats and Republicans, so do appointments to the Court depend on when a sitting justice dies and who is president at the time. And even that is manipulable.
The reviewer points out that Chief Justice John Roberts is painfully aware that the Court’s reputation is riding on the abortion decision facing it in the Mississippi case (that bans almost all abortions after 15 weeks of pregnancy). Reputation, that is, for ensuring justice and for upholding the rule of law, based on the Constitution, in addition to the consequences for the lives of women and girls – beyond what the justices hold as personal beliefs.
Roberts has ruled against his own beliefs as regards abortion more than once in the past, in comparable circumstances. The three pro-choice judges will reject the state laws on solid constitutional grounds. The rest, however, are expected to vote according to their personal beliefs on abortion, of whom five (in addition to Roberts) are anti-abortion. Unless, as the reviewer points out, Roberts can influence them not to reject Roe v. Wade altogether. The fact that some or all of the five may not by moved to vote based on issues of constitutionality, let alone the rights of women, is a serious condemnation of how the current right-wing anti-abortion movement in the US has gained so much power over the years in spite of a large majority of the population being pro-choice. As the reviewer points out, these decisions threaten the long-term legitimacy of the Supreme Court as well as women’s health and lives.
As has been noted often over the last months, some 26 US states will move quickly to criminalise abortion if these decisions mean Roe v. Wade is overturned, while others will pass supportive laws. For example, on 15 March 2022, the Colorado House of Representatives gave final approval to a bill codifying the right to an abortion, overcoming Republican opposition in the longest filibuster in the state’s modern history. The new law adds a provision in state law guaranteeing a pregnant woman the right to have an abortion, even if the US Supreme Court overturns or fundamentally undermines Roe v. Wade. The same week, the state of Idaho copied the Texas “law” that isn’t a law and has banned abortion after six weeks.
The other 24 states will have to decide if they will take on responsibility to help women from other states. The abortion rights movement and all the abortion clinics left standing will need to reconsider what they will do too.
FULL REVIEW: Green Pastel Redness, by Colin Kidd, in London Review of Books, Vol 44, No 6, 24 March 2022, pp. 5-6. (NOT open access)
Authors of the two books: Jackie Calmes is a journalist for the Los Angeles Times. Linda Greenhouse is a journalist, lecturer in law at Yale Law School and covered the US Supreme Court for three decades for the New York Times.
OTHER SOURCES: The Hill, by Reid Wilson, 15 March 2022 ; The Guardian, by Gloria Oladipo, 15 March 2022 ; PHOTO by Mark Wilson/Getty Images, 2009, in Time, 26 June 2015