It’s a time bomb. A bomb capable of blowing up American democracy. A bomb of which nine men and women control the detonator: the judges of the Supreme Court of the United States.
The image may surprise: the magistrates of the Court, appointed by the President and confirmed by the Senate, do not really look explosive. Dressed in their black dresses, they rule on the constitutionality of laws and their compliance with Union laws, whether federal or voted by the States. Their annual session begins on the first Monday in October and lasts approximately nine months. Why sound the alarm bell on the session that has just opened? Because it is, according to the Washington Post, of an “extraordinarily controversial” session, with potentially serious consequences for American democracy.
The Court will rule on questions as fundamental as the right to abortion or the bearing of arms, as well as, perhaps, the “positive discrimination” practiced by universities to correct the under-representation of minorities. But the importance of each of these decisions hides a much more serious danger for the country: the legitimacy of its Supreme Court, as the ultimate arbiter of American democracy.
A Court deemed too conservative
“Never has a more immense judicial power been constituted among any people”, had
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already noted Alexis de Tocqueville. A recent example: the decision of the Court, at the end of 2000, in fact giving the presidency to George W. Bush. Al Gore, his Democratic opponent who claimed victory, accepted the verdict and told his supporters: “Do not denigrate the Supreme Court.”
But the Court has no troops, no security forces to enforce its decisions. As the intellectual Eric Liu reminds us, “democracy only works if enough people believe that democracy works”. If they no longer trust the Supreme Court, especially in the aftermath of contested elections, American democracy will be seriously threatened. And that is exactly what is happening.
In July 2020, the Supreme Court’s approval rate remained high in the polls, at 58%. A year later, it had fallen to 49%. At the end of September, in a Gallup poll, it plummeted to 40%. For 37%, the Court has become too conservative. By deciding to leave in place a Texas law prohibiting de facto abortion, the nine judges have finally made the average American aware that they no longer represent the majority of the country: they have turned all to the right.
It is no wonder. Since 1969, Republican presidents have appointed 15 of the court’s 19 judges, while over the same period, Democrats have won 6 of 13 presidential elections and won a majority of the popular vote in 8 of 13 elections. How is it possible? Luck, in part: a judge is not replaced until he retires or dies. But luck does not explain everything: Mitch McConnell, the Republican leader of the Senate, refused to confirm the last judge appointed by Obama, claiming that the presidential election was too close; four years later, he instead rushed to confirm the judge appointed by Trump following the death of Ruth Bader Ginsburg, when America had already started voting. This is called piping the dice.
Politicization of the Supreme Court
Why is the Court so obsessed with Republican voters and their party, when Democrats have so far paid only distracted attention? Because they know that they have become a minority and that in their eyes, a conservative court is the only way to impose their views, particularly religious or cultural. Abortion is the best-known example, it is not the only one: the Court authorized the surge of money in political life, it also ended a law which corrected the obstacles to the vote of minorities in the southern states.
By force, this thumb clearly resting on the right scales of justice ended up noticeable. And the non-action on abortion was the straw that broke the camel’s back. America today finds itself with Republican voters who rely on the court to defend their priorities, while Democrats no longer want her as arbiter.
No one knows when the spark that will ignite the powders will occur. Some hope that the politicization of the Court will facilitate the passage of a legislative reform increasing the number of judges. Wishful thinking: such a law will never pass in the Senate. Others predict that the judges of the Court, aware of having turned a large part of the country to their backs, will correct the situation by making decisions more in the center. Maybe … or maybe not: a judge like Clarence Thomas, appointed 30 years ago, has been rife for 30 years as an “originalist”, that is, faithful to the original letter of the Constitution. .. which he interprets in the most reactionary way possible. There is little chance that he will put water in his wine.
Hence the specter of the bomb: in 2022 with the midterm elections and, even more, in 2024 with the presidential election, the judges could well be called upon to decide as in 2000, neither of the two camps accepting defeat . He is a little over twenty years old, the country had bowed in their opinion. Tomorrow? This will no longer be the case. And football fans know it well: without a referee, matches quickly turn into a pitched battle.
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