While the problems are encircling US President Biden, Congress is only able to act to a limited extent. Not so the Supreme Court, which recently decided key social issues in a piecemeal fashion. Americans are turning away from their system in droves.
It only took a few hours for everything to change. The US Supreme Court had just declared the universal right to abortion to be null and void. The state of Ohio enacted an extremely strict law. An abortion after more than six weeks, when some do not even know that they are pregnant at all, is now a punishable offence. It doesn’t matter whether the woman was raped or a victim of incest. And a little later, the US media reported about a ten-year-old girl who had become pregnant but was suddenly no longer allowed to have an abortion in Ohio. Her doctor called other states and found a gynecologist in Indiana where the abortion could be performed. Still, because the politicians are also discussing a stricter law there.
The governor of South Dakota, where this has happened before, complained that no one was talking about the perpetrator. US President Joe Biden was horrified, as were journalists in a variety of US media outlets. The ten-year-old is an extreme case. But he is someone who shows what the Supreme Court is currently doing with judgments that have nothing to do with the reality of life for a majority of the population. In his verdict, one of the judges wrote that on the basis of the reasoning, consideration should also be given to banning contraception in general. Whether someone is married would not matter. “What century are we living in?” Biden asked incredulously on Friday.
As the supreme authority, the Supreme Court is supposed to ensure that politicians make their laws according to the basic rules of the constitution. But the new judges decide under conservative premises that are highly controversial. Most recently, for example, they judged whether the coach of an American football team was allowed to pray with her on the field after the games, with the participation of the spectators. Because players from the state school saw themselves under pressure, critics saw the separation of state and church watered down.
The Supreme Court ruled in favor of the coach. A little prayer, what’s so bad about that? The reasoning behind the judgment is also highly controversial; first, because it distorts facts in the spirit of the judgment, and second, because religion is banned in state schools because of the principle of equal treatment. So far. The left-wing magazine The Nation said: “In a decision full of lies, the Supreme Court rules that a football coach, if he wanted to, could become a dictatorial priest.” It also asked a razor-sharp rhetorical question: What would the court have decided if the coach prayed to Allah?
That sounds exaggerated, but it fits easily into the often overheated political debate in the USA. The country is in turmoil because its Supreme Court is currently answering important social questions at the highest legal level, mostly in the interest of a minority of the population. Congress, which is responsible for answers, is blocked by the two-party logic, because a 60 percent majority in the Senate is required for regular legislation. This can only be achieved with a great deal of willingness to make compromises, but it happens less and less. At the same time, the majority of the population has lost confidence in the system.
In a matter of weeks, the court abolished universal abortion rights, overturned restrictive rules about carrying a gun in public, and tore down a divide between religion and state, requiring states to fund religious schools with taxpayers’ money. The latter verdict is the latest twist in a politicized Kulturkampf that began more than half a century ago. That’s when the federal tax agency began taxing private religious schools, driving large sections of the Catholic and Evangelical population into the arms of Republicans who are skeptical of centralized power in Washington.
The Conservative majority of Chief Justices is forcing the United States into the past. 6 out of 9 judges, and therefore the current verdicts, are the result of a concerted, multi-million dollar strategy led by the alliance of conservatives and Christians over decades. A network promotes lawyers with specific positions, provides lists of suitable candidates and reasons for judgments for political goals.
Ex-President Donald Trump was only the executive when, during his four years in the presidency, he had three new judges elected for life by the Republican-dominated Senate. On the lower courts of appeal, Trump replaced more than a quarter of all judges. The current verdicts seem like a conservative coup from above, carried out step by step. Abortion law has been the largest of these so far. Conservatives are applauding, not just progressives calling for rigorous congressional action, while US President Joe Biden and the center Democrats retreat to helpless appeals as the legislative process falters.
Almost incidentally, the Supreme Court recently revoked the EPA’s authority to make coal-fired power plants general regulations on CO2 emissions. Congress must give the authority an explicit mandate to do this, or proceed individually for each power plant. This is despite the fact that the EPA had already been mandated by a previous Congress to comply with environmental laws – in this case the Clean Air Act. The judges know that Congress is paralyzed, so their decision protects the fossil fuel industry, complicates the fight against climate change and also endangers public health.
The parliamentary maneuvers of the Democrats have achieved nothing on the controversial issues. The climate program for a greener economy has failed, electoral reform is not realistic, the bill legalizing abortion has been blocked in the Senate. The latter, despite the fact that a majority of the population supports the universal right to abortion. Instead, conservative state governments can now impose the strictest laws on their people.
The consequences of all this are already becoming apparent in polls. People have fundamental doubts about their country. Trust in institutions, which was already low, has collapsed across the board this year and has reached new record lows. Only 31 percent trust religious communities, 7 percent trust Congress, 16 percent newspapers, 11 percent trust television news, 28 percent trust public schools, 23 percent trust the presidency, and 45 percent trust the police. The legal system as a whole is only trustworthy for 14 percent, the Supreme Court for 25 percent.
It could get worse. This year, the Supreme Court wants to rule on who will have the last word in the organization of national elections in the future. In the most extreme case, the Supreme Court could disempower itself and the lower instances and hand over decision-making powers to the elected state governments, including the design of absentee ballots and the certification of the results. The result would be legal chaos in presidential and congressional elections, and the process would be even more politically overloaded.
The so-called affirmative action by universities is also up for decision. For university applicants, these often quote access according to ethnicity, which is intended to increase equal opportunities and reduce discrimination. The court will also deal with the rights of homosexual couples. A web designer refuses to accept a job for a gay couple’s wedding website because of their sexual orientation, a law in Colorado prohibits this.
Why is there this wave of judgment at the top? Several Conservative Chief Justices are proponents of so-called “originalism,” believing that the Constitution should be interpreted literally and not re-evaluated in the current societal context. On this basis, some wild assumptions are made about what the authors probably intended in the 18th century, and a judgment is derived from them. This leaves room for politically motivated interpretations, which the majority believe the judges are exploiting: Last month, 57 percent of US citizens said in a survey that removing universal abortion rights would be “politically motivated, not legally motivated”. Apparently, large parts of the population have the feeling that something has gone completely out of control.
Another example is the gun law, which also deals with a comma that was set differently hundreds of years ago in the draft and in the final version. The versions leave open different interpretations about the intention of the authors at that time. Should only organized militias be allowed to carry weapons? Or every single one? Could it be grammatical incompetence? Lawyers can then discuss with linguists how punctuation was used in the 18th century.
The numerical minority in rural areas feels better represented by this, not overwhelmed by the social changes of the cosmopolitan city dwellers, who in turn do not see the reality of their lives reflected in the backward-looking judgments. Anger grows on both sides, the camps become cemented, and the ability to compromise is declared a weakness. Add to that a lack of trust in the presidency, the courts and the political system, and the problems in Congress. An explosive mixture.
Instead of finding solutions, social conflicts are overplayed and politics become a question of faith. For example, there is no evidence of election rigging in 2020, but Trump’s lost election is perceived as a fraud by Republicans. Almost a third of Americans are convinced that Joe Biden was not legitimately in the White House. Among Republicans it is even 70 percent.
In theory, Congress can rein in the Supreme Court, remove judges from office, or even increase the number of seats to correct an imbalance. But the same applies here: the majority will not allow it. It would take two-thirds of the votes in the Senate. In the past two years, the confidence of the US population has shrunk significantly. Only 30 percent still believe that the American political system would work well with a few improvements, only 6 percent think this is the case now. In February 2020 it was 46 and 9 percent. In the country of individualism, where everyone should be able to do what they want and be happy because there is enough for everyone, there is less and less room for a common democratic idea.
