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“Is the Supreme Court more politicized today than yesterday?”

MAINTENANCE – The politicization of the Supreme Court has been debated in the United States since the repeal of the Roe v. Wade decision last June. For the American journalist, this dynamic has been visible since the 1960s, and it is to be hoped that recent decisions will put an end to it.

Christopher Caldwell is an American journalist, columnist at FinancialTimeseditor at Weekly Standard and at New York Magazine. He notably published The Age of Entitlement: America since the Sixties (Ed. Simon and Schuster, 2020).

LE FIGARO. – In your book The Age of Entitlementyou denounce the way in which the judges have used the Constitution and the Civil Rights Actto promote societal measures since the 1960s. Did the Supreme Court’s decision reversing the Roe vs. Wade decision put a stop to this dynamic?

Christopher CALDWELL. – It’s entirely possible. The dynamic you describe is present in both cases – with judicial decisions superseding democratic legislation. But there is an important distinction to be made between civil rights and the right to abortion. the Civil Rights Act of 1964 is a law, the product of a national, passionate democratic debate that followed the assassination of John F. Kennedy the previous year. It is true that since then judges have interpreted this law too aggressively. But it is still a law, passed by a democratic legislature itself elected by the sovereign people.

The right to abortion arrived in the American legal corpus in a different way. In 1973, as states began to change their abortion laws, the Supreme Court declared in the Roe v. Wade decision that the right to abortion was implicit in the 1788 Constitution. This ended the discussion democratic. The United States is the only Western country that has not passed an abortion law in the past half century. This is the problem the Supreme Court solved: it did not ban abortion but simply said that abortion laws must be introduced democratically, not by judicial decree.

Conservatives claim that the Roe decision was the main cause of this politicization, and they are probably right.

Christopher Caldwell

You regret that decisions as important as abortion, but also same-sex marriage or bilingual education were taken only by judges. Do you see in the Roe vs. Wade decision a desire to return to a more democratic decision-making process?

Yes, that’s exactly it. Resolving these issues through the courts is highly problematic. Firstly because the social background of judges is rather uniform and elitist: lawyers undergo very demanding and costly training; the judges are chosen from an elite of lawyers, then the judges of the Supreme Court are chosen from an elite of judges. All the Supreme Court justices have thus obtained their law degree at Harvard or Yale, with the exception of Amy Coney Barrett, appointed by Trump, who studied at Notre Dame, the first Catholic university in the country. The Supreme Court is therefore a “one percent” institution.

One consequence of this is that the United States, relatively conservative among Western countries, for many years had the most liberal abortion laws on the planet. Until the 1990s, it was possible to abort even viable fetuses up to the ninth month of pregnancy, a fact that did much to radicalize the anti-abortion camp.

SEE ALSO – Pro and anti-abortion demonstrate as the Supreme Court tries to reverse the right to abortion

Are the Supreme Court justices more interested in restoring freedom of decision to Congress and the states or imposing their political vision on the whole country?

This is a difficult question. The Tenth Amendment of the Constitution grants the states all the powers that do not belong to the federal government. But in the 20th century, the Court, sometimes citing the interstate commerce clause of the Constitution, gave the federal government new prerogatives.

These issues are controversial in public opinion. On both the pro-abortion and anti-abortion side, there are moderates – who only want states to have the right to pass their own laws – and hardliners – who want a national law. uniform on abortion. For now, it is the pro-abortion camp that most clearly states its national position. They are asking Congress to “codify Roe,” enacting a regime that resembles the one that existed before the Dobbs decision a few weeks ago.

Neither proponents nor opponents of abortion have the necessary votes to pass such a federal law. For the moment, therefore, the laws of the States will prevail. Abortion will be illegal – sometimes with minor exceptions – in about half the country.

Trump is not the initiator of this politicization of the Supreme Court. Hopefully the Dobbs decision puts an end to that, although it is arguably more difficult to depoliticize a court than to politicize it.

Christopher Caldwell

Have the conservatives finally succeeded in imposing their line within the Supreme Court, after more than 60 years of Democratic domination? Are they in turn turning the Supreme Court into a partisan and political tool, as Sonia Sotomayor lamented?

There is no doubt that this decision is the culmination of a long period of judicial politicization. Conservatives claim that the Roe decision was the main cause of this politicization, and they are probably right: without abortion law, abortion rights rested on the composition of the Supreme Court, which became less a court than a “super-legislature”.

The problem was already evident before the turn of the century. Law professors lamented that support for Roe had become a “litmus test,” and that even supremely qualified justices who failed, refusing to back that decision, would not be confirmed by a Democratic Senate. In 2000, Democratic presidential nominee Al Gore announced that he would effectively impose this “litmus test” on Supreme Court nominees. Trump is therefore not the initiator of this politicization. Hopefully this decision puts an end to it, although it is arguably more difficult to depoliticize a court than to politicize it.

How do you view the statements of Judge Clarence Thomas saying that the same reasoning as that held on abortion could be used on subjects such as homosexual marriage or contraception for married couples?

This is a problem specific to our Fourteenth Amendment. This is a great catch-all amendment, intended to give a new basis to the Constitution after the Civil War, and it is almost a new constitution in its own right. It ensures that people will not be deprived of their rights without due process of law. For Clarence Thomas, a due process of law more or less means fair judicial treatment. The drafters of the Roe decision interpreted the due process of law as “substantial due process,” with the idea that the Fourteenth Amendment created new, real and specific rights that judges could be trusted to identify, including – possibly – abortion.

Clarence Thomas said “substantial due process” was an oxymoron, an illogical doctrine. The other judges disagreed with this view, although many favored it. If they go along with Clarence Thomas’ opinion, other decisions, such as the establishment of same-sex marriage or the repeal of sodomy laws, could indeed be exposed.

SEE ALSO – The American decision on abortion is “significant and historic”, says Mitch McConnell


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