Observations of an Expat: Crunch Time for Justices

The US Supreme Court has started one of its most difficult and important sessions in history. It will deal with two of America’s biggest issues—abortion and gun laws. Their decisions will have repercussions on the future of the court, the American justice system and the nation’s social divisions.

First the cases: Abortion is one of the most divisive—if not the most divisive issue—in modern American history. The anti-abortion lobby has worked tirelessly to overturn Roe v. Wade since the moment it became law in 1973. The pro-life lobby has fought just as hard to retain it. Donald Trump’s appointment of Justices Neil Gorsuch, Brett Kavanagh and Amy Comey Barrett, has given the court a 6-3 conservative bias and the anti-abortion lobby its best chance ever of overturning Roe v. Wade. For the pro-abortion lobby, a decision to uphold Roe v. Wade with the current make-up of the court could, in theory, put the issue to rest for ever.

The case before the court involves the state of Mississippi’s law that bans abortions after 15 weeks. This is not the first time the anti-abortion lobby has attempted a legal challenge. With each previous case the lower courts have rejected the issue because of the primacy of the Supreme Court’s Roe v. Wade ruling. The Supreme Court has previously refused to consider any appeals. The same has happened in the lower courts with the Mississippi law. The big difference is that the Supreme Court Justices have agreed to hear Mississippi’s appeal. On the surface, this does not augur well for the pro-abortion lobby. And if a decision goes against them 22 Republican states have anti-abortion laws ready to be enacted in a matter of days.

The disputed gun law involves a New York state move to ban citizens from carrying concealed weapons unless they can provide an iron clad reason for doing so. This, of course, runs counter to the views of gun-toting Second Amendment supporters, the National Rifle Association, its 5 million members and the scores of Congressmen who rely on gun enthusiasts for financial and political support. This issue is complicated by New York State’s move to demand the dissolution of the NRA as part of its charges that the gun organisation is guilty of fraud, financial misconduct and misuse of charitable funds. The organisation is also bankrupt. But that won’t deter states such as Texas which actively encourages their citizens to carry concealed weapons. In both cases the Justices have basically three courses of action. The first is to leave existing laws alone. The third is to radically change the law. That is ban abortion and concealed weapons. The second option is the middle course—tweak the existing law in both or either case. Whichever course they adopt the Supreme Court Justices will anger and alienate large segments of an already seriously divided America and cast doubt over the Supreme Court’s role as the nation’s arbiter.

The founding fathers meant for the Justices to be apolitical Olympian-like beings who deliver judgements based on legal precedent, their interpretation of the constitution and careful consideration and debate. The Justices are nominated by the President but the political element is checked by Senate confirmation. And when they are confirmed, the Justices have a job for life, which, in theory lifts them head and shoulders above the political fray. The 2000 Bush-Gore election changed that. The debate over Florida’s “pregnant chads” went all the way to the Supreme Court which voted in favour of George W. Bush along strict party political lines. This division has continued ever since—with a few notable exceptions. This is why the anti-abortion and pro-gun lobbies are hopeful that the Trump appointees will swing events their way. Their opponents are girding themselves for a bitter battle before, during and after the hearings. But strange things happen to Supreme Court Justices when they don their black robes for life. They often become more concerned with upholding the majesty of the law then personal partisan beliefs. All of the current justices—including the three Trump appointees– have used the recent adjournment to tour the country and repeatedly stress the non-partisan role of the court. Chief Justice John Roberts said: “There are no Bush Justices, Obama Justices or Trump Justices. There are only Supreme Court Justices.”

The Supreme Court cannot make laws. That is the job of Congress and the President. They can only accept, tweak or reject on the basis of their interpretation of the constitution and legal precedent. The success of their decisions depends entirely on the general public accepting the wisdom of their judgements. If the public believes that the judgements are politically motivated then there are serious problems.  The Supreme Court and the entire American legal system is undermined.

* Tom Arms is foreign editor of Liberal Democrat Voice and author of “The Encyclopedia of the War” and the recently published “America Made in Britain". He has a weekly podcast, Transatlantic Riff.

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This entry was posted in Op-eds.


  • Brad Barrows 16th Oct '21 - 9:06am

    I think the author has a slight mix up in that the pro-life side of the argument wishes to overturn Roe V Wade while the pro-abortion side wishes to retain it.

    That said, the key issue facing the Justices is whether abortion is a Right that is protected by the US Constitution or whether the matter is an issue that should be decided at State level. Most ‘conservative’ judges and justices take the view that there is a process to amend or add Rights into the Constitution and the 1973 Roe ruling was an example of judicial over-reach in that Justices did not have a sound Constitutional basis for their ruling. A ruling to over-rule Roe V Wade wound not ban abortion – it would merely return the issue to state level to determine where most States already have laws waiting to take effect in that eventuality. These state level laws range from almost no abortions other than to save the life of the mother, to unrestricted abortions up to the point of birth.

  • Peter Martin 16th Oct '21 - 10:10am

    The mix up is also causes by the anti-abortion side preferring to be called pro-life whereas the other side is pro-choice.

    I don’t think anyone is actually pro-abortion per se. If any woman wants to have a baby that should be fine by everyone.

  • Brad Barrows 16th Oct '21 - 11:38am

    @Peter Martin
    The issue is even more complex than what you describe. ‘Abortion’ means to end a pregnancy – the pregnancy is literally aborted – but a pregnancy can be ended without necessarily leading to the death of the foetus/baby. For example, in late-term abortions, labour is often induced early to end the pregnancy but the foetus is injected with something to kill it first to prevent the possibility of a live birth. If, despite this, an abortion leads to a live birth, the baby (as it now is) is not placed in an incubator to help it live but is left on a tray until it dies. In other words, the right to an abortion is not just about the right to end a pregnancy but also about the right to ensure that the pregnancy ends with the life of the foetus/baby extinguished, even if it somehow survives to be born alive. Quite an uncomfortable truth.

  • My sincere apologies for the pro-anti mix-up. It was a tiring week, but that is no excuse. I hope readers grasped the meaning despite my errors.

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