Roe v. Wade fiasco demonstrates America’s need for legislative effectiveness
Why trust in the Supreme Court suffers from Congress’ lack of resolve
For citizens of most common law-abiding democracies, the prospect of major social issues being adjudicated and re-adjudicated in court as they are in America does not figure, with relatively few exceptions.
It is a shame when the Supreme Court of the United States is treated as if it is a third legislative chamber, and its justices tallied by the party affiliations of the presidents who appointed them. With all of the American system’s great strengths, which have allowed it to function robustly for two and a half centuries, the politicisation of the nation’s highest court represents a flaw. This relates not only to the court, but also to the presidency and, most of all, to Congress.
The president of the United States was not originally intended to possess as much power as the office now has. As the office’s power was grown, so has its politicisation. The Supreme Court is no exception to this. Supreme Court nominations, often in the past been confirmed on a bipartisan basis, have become bitterly partisan affairs. The country deserves better.
The Supreme Court has traditionally been a trusted institution, as it ought to be for the optimal functioning of the rule of law. However, preceding the overturning of Roe v. Wade, only 25 percent of Americans had confidence in the court, down from 36 percent in the prior year. What conservatives believed to be sensible jurisprudence, progressives saw as judicial activism. The inverse is true in relation to the original ruling some half a century ago. Although Republican confidence in the court — as might be expected — ticked up, it was recorded only at 39 percent, the second-lowest score since 2016. Merely 25 percent of independents and thirteen percent of Democrats reported that they were confident in the court.
The perception … that the court’s ruling was a statement against the views of most Americans fosters an opinion that American democracy is in need of reform.
Courts are an essential component of democracy precisely because they do not follow the whims of mobs. However, public faith in core institutions allows them to function more effectively, and generally leads to a more harmonious — even if diverse in thought — civil society. As the Supreme Court has become associated with contentious opinions in recurring public debates, it is of little surprise that trust in it has suffered. This only appears more logical when one considers that a consistent majority of Americans support the right to abortion “in all or most cases”, and the overturning of Roe v. Wade has been seen as a victory precisely for those who oppose such a right. The perception, rightly or wrongly, that the court’s ruling was a statement against the views of most Americans fosters an opinion that American democracy is in need of reform. In some areas, reform would indeed be beneficial.
The lack of will in America’s legislatures to deal with contentious societal issues places courts in an awkward position. In essence, the same seeming inability of legislators to advance the interests of the public (with welcome exceptions, such as the recent gun bill) which is at the root of discontent with Congress’ performance is also why the Supreme Court finds itself here.
The perceived ineffectiveness of Congress fuels the politicisation of the Supreme Court and calls for reform — some of them justified, some not. These include calls to abolish or reform the electoral college and filibuster, both of which exist for the purpose of protecting America’s democratic pluralism. It also fuels calls to pack the Supreme Court, which would only worsen the situation.
Republicans who believe in the American legislative and judicial system should seek legislative compromise in pursuit of their greater interest, and should make themselves amenable to moderate reform. Democrats who seek reform should moderate themselves, lest provoke conservative fear. These changes ought also to leave both with less to worry about should the other party win the presidency, as an effective legislature would lessen the desire for a strongman president. Such actions on the parts of both would do much to advance trust in American institutions and promote the goodness of their liberal virtues.
