As Joe Biden continues to chew through a tasting menu seemingly laid on for him by the Four Horsemen of the Apocalypse, the next dish coming up to the table is the idea of packing the supreme court.
The supreme court of the United States (Scotus) is what it says on the tin: the ultimate word on law at the federal level, presiding over all of the federal courts below it. It, in fact, interprets the United States itself.
Created under article three of the US constitution, the court fluctuated between five and 10 judges in size before becoming nine justices in 1869. It has remained that way ever since, probably as a recognition of the seismic change already encompassed by three post-civil war amendments to the constitution around that time – the 13th; 14th; and 15th. These abolished slavery on US soil, addressed citizenship rights and equal protection under the law; and prohibited the states from denying a citizen’s right to vote based on their race.
The 14th amendment contains a “due process” clause, which applies to what the consitutions calls “natural persons” – as opposed to “legal persons” like a corporation. My enslaved ancestors were not considered “natural persons”. The 14th amendment was created to fix that.
But the 14th amendment also implies that all Americans walking and talking are “natural persons”. Until recently, the court’s rulings regarding abortion rights implied that a foetus was not a “natural person” under the law. It, therefore, did not enjoy the same rights and protections as someone who had been born.
Roe v Wade, a landmark supreme court case of 1973, upheld the due process clause in relation to a woman wanting an abortion. It did so because the clause is rooted firmly in Magna Carta: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
Yet two current justices appointed by Republican presidents, Clarence Thomas and Samuel Alito, are “originalists”. They believe that the constitution is “stable” and should only be interpreted according to what was known at the time of its creation. They say that because abortion was not known by the Founding Fathers, it therefore cannot be addressed by the constitution and so the matter must be returned to each of the individual 50 states for each to address the matter as each sees fit.
That’s why the progressive left wants the next course at Biden’s horror buffet to be “Pack the supreme court”.
After the shock of the 13th, 14th and 15th amendments, nine judges were assumed to be just right and fit-for-purpose for the complex United States, which was entering an age of rapid industrialisation, growing immigration and expansion of its boundaries. It was beginning to take up commanding presence on the world stage.
Then, after his improbable 1936 election victory, Franklin Delano Roosevelt decided to extend the court. He had every reason to believe that he had a mandate to do whatever he wanted because he had been re-elected in a landslide. Scotus was obstructing him, sending back his New Deal laws created to reshape Depression-era America.
Roosevelt tried, but was defeated by his own side. His bill died in committee. It was seen as executive overreach that could drive a coach and horses through the credo of the separation of powers between the legislative, executive, and judicial branches of government. In other words, it would have given any president the right to extend the court to put in place the judges that he/she wanted.
That call is out there again in light of the setting aside of Roe v Wade by Thomas (appointed by George Bush Snr), Alito (appointed by George W Bush) and three other justices who were appointed by Donald Trump. In doing so, the supreme court has ignored the concept of “stare decisis” – roughly translated as “things in their place” – or precedent.
Alito has suggested that the concept of sending other things the Founding Fathers did not know about back to the states means they should have the final say on things same-sex marriage, even marriage between people of two races.
It’s a throwback to the past. An Irish-American and an African-American were once legally barred from marrying in the South until the supreme court ruled that this violated the privacy of a human being as implied in the constitution.
Biden has indeed explored whether he can “pack” the court – and appoint his own justices. A report back has shown him the difficulties. Also, the man is an institutionalist, and loath to change institutions without extreme cause. He had been a senator from 1973, the year of Watergate, until getting elected vice-president in 2009. He respects tradition.
He also knows that if he does try to pack the court, a) when the Republicans have the majority, they’ll use his precedent against him and other Democrats; and b) he quite simply does not have the votes to get the proposal through the Senate.
Those who are appalled by the court’s decision could reasonably ask, then, why the Democrats aren’t waging a furious campaign, in this midterm season, to wipe the Republicans off the face of the earth.
But they are also up against a deeply entrenched and in some cases religious campaign that calls itself Pro-Life. It has run alongside Roe for the entirety of its existence. Pro-Life is deeply, intrinsically, rooted in the ethos of the country.
In a nation founded by settlers determined to the death to separate church and state, there was and is an undercurrent, a counter-trend that many call the real engine of America; evangelical, millenarian Christianity. This justified the war in Iraq by insisting that it would hasten Armageddon. And, therefore, the return of Christ, this time in glory.
This evangelical Christianity put “one nation under God” into our Pledge of Allegiance. This is what allowed the Trump appointees – Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett – to insist that they would uphold stare decisis while inside themselves they held allegiance to what they see as a higher law.
Justice Alito, in his majority opinion, stated that abortion presented a “moral question”. But it should not in a country that separates church from state.
It should not in a nation that enshrines the principle that all people are created equal. But, in the end, how can that be true?
Because if you are born in Texas with a fully functioning uterus, your body does not belong to you. It belongs to Texas.