The divided US Supreme Court


The divided US Supreme Court

Sunday, July 05, 2020

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The United States Supreme Court, the highest court within that country's judicial system, is the subject of extensive scholarly and journalistic opinion. One point of focus concerns the ideological predisposition of each individual member of the court. It is often presumed that judges will normally vote in accordance with identifiable philosophical positions, with Conservatives and Liberals in almost constant debate on the nine-member bench.

Division not new

This is, of course, not a new feature of the Supreme Court. As noted by Bob Woodward and Scott Armstrong in The Brethren, the court led by Chief Justice Warren (the Warren Court) took American jurisprudence in a distinctly Liberal direction in the 15 or so years leading up to 1969. And even from that time, some Conservatives have maintained that pronounced and deliberate political efforts must be made to bring the court back to the right, after the entrenchment alleged Liberal “excesses” in the law by judges such as William Brennan, Thurgood Marshall, and others of the Warren Court and beyond.

'Intellectual Feast'

Along the road of left/right ideological disputation, notable milestones have come to be associated with the process of judicial appointments. So, for example, Conservative nominee Robert Bork, who aspired to participate in the “intellectual feast” associated with final decision-making, was turned away from the court by a vote of 52 to 48 in the Senate, in 1987. Judge Bork's replacement, Anthony Kennedy, became an important swing voter on the court, sometimes supporting Liberal causes, notwithstanding that he had been nominated by the reliably Conservative Ronald Reagan.

The Liberal judge

Since the time of the Bork nomination, advocates of both the left and right have set out expectations for judicial appointments, with various acid tests being placed on the public agenda. To consider the matter from the Liberal end of the spectrum, a Supreme Court judge today is expected to support abortion rights as adumbrated especially by Justice Harry Blackmun in Roe v Wade (1973) and reinforced in amended form by the trio of Justices Sandra Day O'Connor, David Souter and Anthony Kennedy in Planned Parenthood v Casey (1992).

In addition, the Liberal judge will in all likelihood adopt an expansive view on non-discrimination issues, embrace affirmative action in favour of the traditionally dispossessed, place limits on states rights, and support constitutional rules limiting police excesses. The Liberal judge will also be inclined to restrict the application of the death penalty, to support gay rights, and to promote migrant rights. Generally, in interpreting the law, the Liberal judge will tend to view the Constitution as a “living instrument”, a set of evolving rules which reflect changing mores, values and expectations of modern society.

Conservative orthodoxy

Conservative orthodoxy differs from the foregoing Liberal positions in significant ways. Affirmative action, for instance, is largely frowned upon, on the assumption that it promotes discrimination — this is evident in Chief Justice Roberts' dictum in the case of Parents Involved in Community Schools v Seattle School District No 1 (2007), that the best way to prevent discrimination on grounds of race is to stop discriminating on grounds of race. Conservatives will be more willing than Liberals to support the application of the death penalty, have traditionally held that gay rights are not expressly supported in the Constitution and show deference to State rights.

On the acid test of abortion, Conservatives such as Antonin Scalia have opined that Roe v Wade should be overturned, as a decision which has no legitimate foundation in the Constitution. Conservatives, too, led in recent years largely by Scalia, have argued that constitutional interpretation should follow the plain meaning of the text, as the words meant at the time they were used by those who framed the Constitution.

The Roberts Court

Today's Supreme Court — the Roberts Court — is widely perceived to be tipped slightly in favour of Conservative perspectives, with five judges — Roberts, Thomas, Alito, Gorsuch and Kavanagh — having been nominated by Republican presidents. The other four judges — Breyer, Ginsburg, Sotomayor and Kagan — nominated by Democratic presidents, adopt Liberal positions on most matters. With this composition in mind, it is fair to anticipate Conservative decisions on various hot-button social and political issues that come before this bench.

Results not guaranteed

It should be underlined, however, that the left-right dichotomy does not invariably guarantee results on preordained lines. For example, in National Federation of Independent Business v Sebelius (2012), Chief Justice Roberts voted with Liberal colleagues, and against Conservatives, to preserve a key component of the Obamacare health scheme, by a margin of one vote.

More recently, over the last three weeks, the Chief Justice has again controversially broken ranks with Conservatives, giving decisive support to Liberal ends in three cases with major political implications.

Gay rights case

These three cases pertain respectively to gay and transgender rights, immigration rights and abortion. In the first of these cases — Bostock v Clayton County —the central issue was whether an employer who dismisses an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination on grounds of a person's “race, color, religion, sex or national origin”. It does not refer expressly to sexual orientation, and this has prompted the Conservative view that, as a matter of law, Title VII just does not address discrimination against gay and transgender persons.

However, in a judegment written by the Conservative Gorsuch — joined by Chief Justice Roberts and the four Liberal judges— the Court's majority offered an alternative reading of Title VII. The starting point for the majority is stated to be that respect should be given to the ordinary meaning of a legislative provision as understood at the time of the enactment. And, ultimately, the majority concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against the individual based on sex.”

The majority reached this conclusion by pointing out that if two individuals — male and female — are attracted to men, then to fire the man attracted to men but not the woman in the same position, would be to discriminate against the man because of his sex.


Conservative analysts will criticise this judegment for seeming to equate “sex” (meaning gender) with “sexual orientation” and “gender identity”, as well as for going against the general understanding of Title VII which prevailed at the time the Civil Rights Act was passed. In his dissenting judgement in this case, Judge Alito referred to the majority's interpretation as “brazen” and “preposterous”.

Alito further emphasised that the majority was not relying on the text of the Civil Rights Act, as previously understood: “The Court's opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation … that courts should 'update' old statutes so that they better reflect current values of society.” The battle lines of statutory interpretation have been drawn, with Chief Justice Roberts appearing on the Liberal team.

Obama DACA

The second of the three recent cases in which Chief Justice Roberts appears to have departed from Conservatism — Department of Homeland Security v Regents of the University of California — concerns migrant rights and the Obama Administration's Deferred Action for Childhood Arrivals (DACA) Program.

Under the DACA, which was introduced in 2012, undocumented migrants who went to the USA as children have been allowed to apply to remain in the country, for two years, to work, and to receive certain federal benefits. About 700,000 people, mainly from Latin America, have availed themselves of this opportunity for protection.

In 2017, however, the Trump Administration sought, among other things, to rescind the DACA programme. In the case at hand, the Court was called upon to decide whether, as the Trump Administration argued, the rescission of the DACA programme could take effect as a measure consistent with American administrative law.

Trump response

By a majority of five to four, the Court held that the Trump Administration's approach was in breach of the law. The majority judgement on the main issue — whether the rescission was lawful — was written by the chief justice himself. It noted that the Trump Administration had discretion to rescind the DACA programme, but to do so, the Administration needed to provide a reasoned position for the rescission of the main parts of the programme. As the rescission did not give adequate reasons, the Trump approach could not stand, without further elaboration.

This majority decision, in a case with several dimensions, has the humanitarian effect of preserving rights for young people by allowing them to remain in the USA in keeping with the Obama approach. In opposition, the Conservative, minority, approach, as presented for instance by Judge Thomas, is that the DACA was unlawfully imposed ab initio by Obama, and that Trump has now been obliged to continue implementing an unlawful programme.

The effect of this decision will be to offer opportunities to the traditionally dispossessed, a key Liberal objective implicitly supported here by the Conservative Chief Justice.

Abortion rights

The third and final recent case in which Chief Justice Roberts appears to undermine the Conservative/Liberal dichotomy is June Medical Services LLC v Russo, on the vexed question of abortion rights. In this case, the State of Louisiana, by Act 620, confined the right to perform abortions only to doctors with “active admitting privileges” at a hospital no further than 30 miles from the place of the abortion. This had the likely effect of reducing the availability of abortions to women in Louisiana. The question for the Court was whether the “active admitting privileges” requirement constituted an undue burden on the abortion rights of women.

Undue burden

In the end, the four Liberal judges — Breyer, Ginsburg, Kagan and Sotomayor — relying mainly on Planned Parenthood v Casey and a recent Texas-based case, Whole Woman's Health v Hellerstedt — concluded that the requirement in Act 620 was in fact an undue burden, and the law needed to be struck down. The abortion rights would remain in place without the restriction requiring doctors to have active admitting privileges.

Stare decisis

Conservative orthodoxy may have placed chief justice in opposition to the Liberal approach, but, in this case, he provided the fifth vote to delete the admitting privileges requirement. In effect, therefore, Chief Justice Roberts voted to uphold abortion rights. His position was built on the premise of stare decisis, the idea that courts should follow their earlier precedents. He found that Act 620 was essentially the same as the law struck down in Whole Woman's Health v Hellerstedt. He considered himself obliged to respect that precedent.

Clarence Thomas

Judge Thomas, resolutely on the Conservative side, would have none of this. He criticised Roe v Wade, the primary precedent in favour of abortion rights, as wrongly decided (and even apparently “farcical” in some respects). Indeed, the opening sentence of his dissenting opinion in June Medical Services captures the flavour of the Conservative approach: “Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law…”

The long drawn ideological lines in the divided Supreme Court are sharpening. The chief justice, in trying to keep his Court together, has an unenviable task.

Ambassador Stephen Vasciannie is Professor of International Law at the University of the West Indies, Mona.

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