In two weeks, the Supreme Court of the United States has done more things than the president of the nation in a year and a half. Done… or undone, depending on how you look at it.
First, last Thursday the 23rd, the Court decided to go over the national mourning in the face of the latest killings in mass shootings and expanded the right of citizens to carry weapons on the street, by eliminating the restrictions that some states prevented those who did not demonstrate just cause. Later, on Friday the 24th, it abolished the right to abortion that the institution itself had enshrined for 49 years in the Roe vs. Wade. And on Thursday the 30th, he stripped the Government of its general regulatory power in the reduction of greenhouse gases: a severe setback to the fight against climate change, which Joe Biden tries to champion in the world.
The three sentences had as a common denominator their approval by the overwhelming conservative majority of 6-3: a hegemony that former President Donald Trump conscientiously worked on, first by blocking for almost a year an appointment that corresponded to Barack Obama and he had reserved for today’s attorney general, Merrick Garland, and later with the appointment of three ultra-conservative judges willing to overturn the free interruption of pregnancy.
While the Supreme Court dealt him one setback after another, Biden has not even been able to carry out his flagship projects, except for the $1.9 trillion pandemic stimulus package and the $1.2 trillion infrastructure plan backed by the Republicans. The president is not throwing in the towel in his struggle to approve a large program of social and environmental spending, as well as to reverse the annulment of the right to abortion with another law; for also counteracting state legislation that erodes the right to vote, or for developing an immigration reform that really differentiates him from the xenophobic policies of his predecessor. But, with less than five months to go before mid-term elections to renew the Houses that look bad for the Democrats, the president’s chances of success in these and other matters seem minimal.
The Supreme Court, based in Washington, is one of the most powerful judicial bodies in the world, in addition to the only one of federal rank provided for in the country’s Constitution. Its nine members have a life term, although they can obviously resign or withdraw. And not only do they occupy superior jurisdiction in all orders, but they also act as a constitutional court and act as a legislative arm through the constant production of jurisprudence. It is not in vain that numerous fundamental norms that act as laws bear the name of some procedure resolved by the court, as was the case of Roe v. Wades from 1973.
Now, as a result of decisions of high social significance and strong ideological charge that in cases such as abortion and weapons collide with the majority opinion of citizens, the super-powerful Supreme Court is going through a crisis of legitimacy. In the words of the Political Science professor specializing in the matter and author of the book The Supreme Court in a Separation of Powers, the court has become “an institution that makes the law instead of interpreting it”; in a domestic “major actor in the promulgation of policies”, and, in short, in what many see as “the most powerful branch of the State” when it should not be.
The court’s public image is at an all-time low, at least in 50 years of annual Gallup polling. According to the last of them, carried out before the unpopular ruling on abortion, only 25% of adults in the country have “a lot” or “quite a lot” of confidence in the court: a rate much lower than the 36% of last year and 5 points below the previous minimum, registered in 2014.
The debate about the excessive power of the nine magistrates of the Supreme Court is not new. All civic and political organizations in the country not attached to the extreme right or to the ultra-conservative and ultra-liberal sector of the Republicans had their alarms going since before the rulings on weapons, abortion and climate.
Last August, the court annulled the moratorium on tenant evictions that the Centers for Disease Control and Prevention (CDC) had imposed in counties with high levels of covid transmission. The government department had argued that mass evictions would exacerbate the spread of the pandemic. But the conservative majority of the Supreme Court prioritized the property rights of the recurrent real estate agencies and considered that the centers had exceeded their functions. The same six judges who a year later would assert their hegemony to put an end to various Democratic conquests argued that Congress, by legislating on the CDC, had not wanted to give them so much power.
And that was also the argument that the conservative justices used in the ruling in which, on Friday, they established that the Federal Environmental Protection Agency (EPA) lacks the authority to regulate greenhouse gas emissions in general.
This latest resolution, with the precedent of the CDC and other similar ones against different government agencies, opens the ban against the regulatory power of the Executive through its specialized bodies. And it reactivates the old battle of the economic, business or financial interest groups against the limitations on the private sector by the State, even if it is to defend the common good.
The dispute dates back to the times of the new deal, when the Supreme Court’s attacks on the new administrative State led Roosevelt to an attempt to expand the court in order, by appointing new judges favorable to his plans, to stop the judicial offensive against the Administration. . He didn’t get it.
Joe Biden, who has called the latest court rulings “terrible and devastating”, rules out trying to expand it. He agrees to continue playing with the cards he has been dealt. And not for good. He, well, he knows that the games against the Supreme are lost.
