The Reversal of Roe v. Wade: What It Really Means - I
The fact that Roe v. Wade could be judicially reversed by a set of political manoeuvres signifies a deeper systemic rot and also foreshadows darker times for the American people.
I’ll certainly write a longer and relatively extensive article (or a few shorters ones, focusing on different aspects of the ruling) on the reversal of Roe v. Wade, but that will most likely be a thick and uninteresting read (and maybe a bit too long) for most readers of these posts. More importantly, the technical legal aspects involved are not even of much concern to most readers anyway even though the central issues are relevant for and perfectly comprehensible to everybody, Americans, Indians and others alike.
We, the Indians, have to be particularly concerned because what holds for the American democracy pretty much holds for ours, too, as the forces and voices influencing the polity there are much the same here. However, our constitutional mechanisms have evolved differently, and on several fronts better, than their American counterparts, but the challenges they have been facing of late are very similar, if not near-identical. So even if the reversal of Roe v. Wade does not directly affect us, the politico-legal trajectory that made the reversal possible is certainly of as much concern to us and other democracies as to an average American citizen.
The three most crucial things about the ruling are: one, how it came to be; two, what it changes; and three, what it is really aimed at. Add to the list a fourth: what it signifies in terms of the direction the Americal polity has taken, which is a question implicit in the other three questions and would stand answered by the answers to those three questions taken together. The fact that the decision is seen as having to do more with polity than with the constitutional law, by itself, says a lot and implies even more.
Trump-Tilting Of The American Judiciary
Amid all the ruckus he raked up by his wanton tweets and raving speeches, the Former Guy or TFG, to borrow Biden administration’s prefered term for the former US President Donald Trump, never swerved from the one goal he razor-focused on and single-mindedly pursued throughout his term in office: tilting the US judiciary to the right. In the course of four years, Trump appointed as many as 234 judges, including 54 appellate judges, whereas, by contrast, Barack Obama appointed 172 and George W Bush 204 in their first terms. Trump’s 61.3 is the second-highest per year average of judicial appointments after Carter’s 65.5 in the history of the US Judiciary. To top it off, Trump got to appoint three conservative justices to the US Supreme Court: Neil Gorsuch (April 7, 2017), Brett Kavanaugh (October 6, 2018), and most recently, a devout catholic, Amy Coney Barrett (October 26, 2020), who was appointed after Ruth Bader Ginsburg died at 87, and which appointment handed a definitive 6-3 majority to the conservative justices in the Supreme Court.
The appointment of Amy Coney Barret was particularly problematic because hers was an election-year appointment to the Supreme Court, which doesn’t happen very often because the convention has been to allow the in-coming President with a fresh electoral mandate to make the nomination, which makes more sense in the spirit of democracy. In fact, when Justice Antonin Scalia died in 2016, leaving a Supreme Court vacancy, the Repuplicans, led by Senator Mitch McConnell of Kentucky, opposed the filling of the vacancy by an Obama nominee. They refused to have even a coursey meeting with the then President Obama’s nominee, let alone have confirmation hearings or a vote.
“This nomination will be determined by whoever wins the presidency in the polls,” Mr. McConnell had said, adding, “I agree with the Judiciary Committee’s recommendation that we not have hearings. In short, there will not be action taken.” Opposing a possible Obama nomination to the Supreme Court, the Republican senators on the Judiciary Committee wrote to Mitch McConnell, “Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year. And it is necessary to go even further back — to 1888 — in order to find an election year nominee who was nominated and confirmed under divided government, as we have now.” Very well.
As the fate would have it, another justice died, Justice Ruth Bader Ginsburg, in another election year (2020), but this time the outgoing President was a Republican -- Donald Trump. And the same Republicans, led by the same Senator Mitch McConnell of Kentucky, who had stood in the path of an Obama nomination to the Supreme Court in the election year of 2016, rallied around Amy Connet Barret in the election year of 2020 and had her on the Supreme Court a mere eight days short of the Presidential elections. The Republican hypocrisy couldn’t be starker.
The same Senator Mitch McConnell of Kentucky made no bones about the political nature of the move when he underlined the political implications of the appointment, saying, both bluntly and shamelessly: “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.”
Interestingly, Justice Antonin Scalia had died 269 days prior to the election day in 2016 whereas Justice Ruth Bader Ginsburg had died just 46 days shy of the election day in 2020. The only justice to die closer to the election day was Chief Justice Roger Brooke Taney, who died 27 days prior to the election day well over a century ago in 1864. But these are just pointless details, for the Republicans did not care about the propriety of the move as long as it worked to their advantage, and it did.
McConnell’s unabashed hypocrisy did not really surprise many, for over a year earlier in May 2019, he had already said that if a Supreme Court seat fell vacant in the election year of 2020, he would move to fill it. So when he did exactly that, nobody was surprised because nobody expected him to grow a conscience in a year. To be fair, one can’t be too sure if the Democrats wouldn’t have done exactly the same thing, had the shoe been on the other foot.
Having ensured a 6-3 conservative majority in the Supreme Court in addition to having handpicked 234 federal judges, Trump had successfully managed to tilt the US Judiciary to the right in the divisive four years of his term in office. Trump had promised before he was elected President that he would ensure a reversal of Roe v. Wade through judicial appointments, which is what he managed to pull off, assisted, in small part, by luck and, in a large measure, by the absence of scruples in his Republican colleagues. And Trump, being Trump, did not shy away from hogging credit for the undoing of Roe v. Wade, calling it “the biggest WIN for LIFE in a generation”.
The fact that Roe v. Wade could be judicially reversed by a set of political manoeuvres signifies a deeper systemic rot and also foreshadows darker times for the American people. More about it in the next part of this set (maybe next week).