In the past ten days, the highest court in the United States has canceled the right of American women to have an abortion, enshrined the right to carry a weapon in public, expanded the place of religion in the public sphere and drastically limited federal means. to fight against global warming.
These decisions, adopted by the six conservative judges of the Court to the chagrin of its three wise progressives, are the first illustration of a powerful return of the judicial pendulum after more temperate years, sometimes marked by historic progressive judgments, such as the legalization same-sex marriage in 2015.
With their solid conservative majority, reinforced under the presidency of Donald Trump, the judges offer revenge to the Republican right which, since the 1970s, had sought to take real control of the temple of law, in order to overturn certain key decisions it considered excessive.
During the tumultuous 2021-2022 session which ended on Thursday, the Court took “a dramatic and sudden turn in a much more conservative direction”, analyzes Stephen Wermiel, professor of constitutional law at American University.
This is one of “the rare situations where the Supreme Court has radically taken away constitutional rights”, he underlines.
The last time a Supreme Court was relatively ideologically homogeneous was in the 1960s, when it enacted some of its most progressive reforms, recalls William University legal expert Neal Devins.
Under the presidency of Judge Earl Warren (1953-1969), the temple of law radically changed the daily lives of millions of Americans, ending segregation, strengthening the power of the federal state and laying the foundations for the decision of 1973 which made abortion a right for all American women.
Earl Warren’s court was vehemently denounced by the Conservatives, in the same way that the left today attacks the work of that chaired by the Conservative John Roberts.
But, unlike today, judges did not necessarily decide the most crucial decisions according to their supposed political affinities.
Five of the seven judges who supported the 1973 decision to extend the right to abortion to all Americans had, for example, been appointed by Republicans.
In today’s Supreme Court, common ground between the two camps is much rarer.
– Positive discrimination, elections –
The conservative bloc chaired by John Roberts is also distinguished by its deep conviction that the Supreme Court has, in the past, agreed to examine questions that it should not have had to decide.
This is the argument that these judges used to justify canceling the right to abortion, believing that it was up to the voters of each American state to decide this social question.
This court also held that it was up to Congress, not an independent government agency, to set regulatory standards such as limits on greenhouse gas emissions.
His critics accuse him of deliberately ignoring the reality on the ground, with American states so deeply divided, from progressive California to conservative Wyoming.
The Supreme Court also knows that Congress, which is struggling to adopt major reforms on social issues, “does not work”, said Richard Lazarus, professor of law at the prestigious Harvard University.
And yet, it “threatens the state’s ability to ensure the health and well-being of its people, even as the United States and all nations of the world face the greatest environmental challenge in history. “, he regrets.
It seems unlikely that the court’s conservative bloc will stop in its tracks. Its judges have agreed to examine a series of potentially crucial cases at the start of the school year, notably relating to positive discrimination and the way in which elections are regulated.
After 50 years of waiting, the conservatives “have the opportunity to give a radically different direction” to the country, judges Professor Wermiel. “They’re not going to let this chance slip away.”
