Abortion, weapons, climate… In the United States, the conservative turn of the Supreme Court has only just begun

These decisions, adopted by the six conservative judges of the highest court of the United States 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 judgments historic progressives, like the legalization of same-sex marriage in 2015.

“Spectacular and sudden”

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 Neal Devins, a law expert at William & Mary University.

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 groundwork for the decision of 1973 which made abortion a right for all American women.

A Deeply Divided America

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.

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.

Conservative judges on their way

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, just 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.

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