Facing Donald Trump’s nominee to the US Supreme Court are the US politics of abortion, which are far removed from the same issue in Malta. But distance sometimes makes things worth discussing, while ignoring them is a lost opportunity to see ourselves in an unfamiliar light.
One reason for a closer look is that the actual issues are sometimes misunderstood. Trump’s nominee, Brett Kavanaugh, is described as a conservative who might end up reversing Roe v. Wade, the 1973 case where the Supreme Court stated that a woman’s right to have an abortion could be read into the US Constitution, even if it wasn’t mentioned.
Now, it’s true that Kavanaugh is a social conservative. He served in the George W. Bush White House. But what really matters is that his judicial philosophy is conservative, and that means something else.
It means, first, applying the law as written, paying attention to the lawmakers’ intentions, whatever the judge’s own private opinion about their wisdom. It means avoiding reading rights into the Constitution (‘substantive due process’) that are not explicitly there.
Second, it means being conservative about overturning past decisions of the Supreme Court, even if the judge has a dim view of the original decision. This is the principle of stare decisis, letting decisions stand unless something important has changed. People need the law to be predictable and not subject to sudden swerves just because the composition of the court has changed.
Faced with Roe v. Wade, the two conservative dissenters said the case as it was did not fall under the Supreme Court’s jurisdiction. To read abortion rights into the right to liberty or privacy is essentially to turn the judge into a lawmaker. It violates the separation of powers between the judicial and legislative branches.
This was the position of Associate Supreme Court Justice Byron White, a conservative jurist whose politics were liberal. He was nominated by John F. Kennedy, whom he had helped get elected and in whose White House he had served, and he voluntarily retired during Bill Clinton’s presidency, giving a liberal president the opportunity to choose his successor.
Despite his politics, White argued it was wrong for the court to prioritise women’s rights in abortion cases – not because he disagreed personally but because it was up to lawmakers in individual states to legalise abortion if they chose, as indeed some already had.
Meanwhile, the majority opinion in Roe v. Wade was written by Associate Justice Harry Blackmun, under Chief Justice Warren Burger, who sided with the majority. Both had been associated with the Republican Party since the 1950s, and they were appointed to the court by Richard Nixon. Another Nixon appointee, Lewis Powell, also voted with the majority. All three were political conservatives with a judicially moderate philosophy.
Such examples underline the difference between conservative judicial philosophy and conservative politics. Does the distinction matter if Kavanaugh happens to be conservative in both senses?
Yes, because any court decision he participates in will be taken over 45 years after Roe v. Wade. Elements of that judgement have been upheld since. As a judicial conservative, Kavanaugh is likely to pay respectful attention to precedent.
His long judicial record suggests that he will approach major issues on a case-by-case basis and pay attention to nuance. It’s why some hard-line conservatives are against his nomination.
What is more likely is a series of decisions that rule in favour of permitting states to introduce new restrictions to abortion rights
In one abortion case – concerning a detained teen illegal immigrant who wanted access to abortion – he recognised that states sometimes have a legitimate right to protect the unborn (a position liberals don’t like) but that, once the right to have an abortion existed, access could not be denied to a woman simply because she was not a citizen (a position that infuriates conservatives).
It’s clear he decides cases not by working backwards from the outcome that he personally would like but by looking at the process. In the judicial world, he is profoundly respected even by judges of a different philosophical persuasion.
Indeed, one of the ways to increase your chances of clerking for a Supreme Court justice is first to clerk for Kavanaugh. Even liberal justices like Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan (who as Dean of Harvard Law School had hired Kavanaugh) sign his clerks on.
This background helps illuminate four quick points, two about US politics and two concerning a comparison with Malta.
First, even if Kavanaugh (who is likely to be confirmed) joins a Supreme Court that then overturns Roe v. Wade thanks to his vote, it would not mean that abortion becomes illegal in the US.
It would simply mean that, on abortion, the US will resemble the EU: a different set of laws for each member state. New Jersey would be able to keep its permissive abortion laws while other states, like Texas, would be able to restrict abortion or make it completely illegal. In each case it would depend on state politicians.
However, such politicians would have to face their own voters. Roughly two-thirds of Americans are in favour of abortion rights at least in the first trimester. Given those conditions, it’s difficult to see abortion being made completely illegal except, perhaps, in a handful of states.
As far as the Supreme Court goes, what is more likely is a series of decisions that rule in favour of permitting states to introduce new restrictions to abortion rights. For example, certain aspects of Roe v. Wade make the decision turn on the existing state of medical knowledge and technology in 1973. Medical advances since then could be used to justify divergence from precedent.
Second, there is the spectacle of the Democrats waging all-out opposition to someone who, whatever you make of his political preferences, is a qualified candidate for the Supreme Court.
The explanation lies in electoral politics. The Democrats want to mobilise their base to vote in vast numbers in the November elections. If they make sufficient gains, they would be able to deny Trump another nominee. The next replacement will almost certainly be of a liberal justice.
Switching our gaze to Malta, we have reason both to envy the US and to thank our lucky stars we’re different.
Envy? Think of Giovanni Bonello’s series for The Sunday Times of Malta on the sorry record of our Constitutional Court, with its history of routinely siding with executive over-reach at the expense of ordinary citizens. And worse, doing so because of the misunderstanding of basic legal principles.
Then you can see how the US, for all its scorched-earth partisanship, still has important checks on executive power, one of which is the judiciary, whose most senior members often join the bench with a developed philosophy of either defending civil liberties (if they’re liberal) or restricting an over-reaching executive (if they’re conservative).
Lucky stars? We are nowhere near the politicisation of the judiciary that there is in the US, where even qualified candidates are tarnished by the partisan criticism and – it should be said – the partisan support they get.
We’ve avoided it because, so far, our law-making and granting of civil rights (as distinct from protection of rights) have remained the province of our legislators. That shouldn’t change irrespective of the nobility of the cause. Otherwise we’ll get the worst of both worlds.
ranierfsadni@europe.com