It has been a politically turbulent few months for the United States of America in the lead up to the presidential election. We have already witnessed many twists and turns which are almost certainly set to continue.
Last month, Justice Ruth Bader Ginsburg, Associate Justice of the Supreme Court of the USA, lost her long battle with pancreatic cancer. Her nominated successor has already caused a significant amount of controversy. In my recent blog, I had discussed the impact of Justice Ruth Bader Ginsburg.1 In her career, she was a powerful figurehead in the US Supreme Court fighting for civil rights for women and minority groups.
But, could her legacy be lost?
Her nominated successor is Amy Coney Barrett, a controversial figure within the USA. Whilst qualified for the role, she has faced criticism for some of her judgments in significant legal cases. There are serious concerns that if elected, this would be symbolic of a massive step backwards for civil rights.
What does her nomination mean?
Arguably, her nomination is a political stand. Judge Barrett is the successor nominated by President Trump because her views align with ‘traditional’ Republican values.
One of the most notable being her views on the case of Roe v Wade 2. This is a landmark decision which struck down a statute in Texas which banned abortions. The decision in Roe meant that any existing laws preventing abortions became unenforceable. In practice, the law encapsulates what we know as ‘pro-choice’ and protects a pregnant woman’s right to choose to have an abortion without excessive restrictions.
It has been widely speculated that Judge Barrett would be in favour of repealing this case. This would fall in line with some of her previous decisions. She voted in favour of a law that would have mandated doctors to inform the parents of a minor seeking an abortion, with no exceptions.
If Roe is limited or overturned, state officials could seek to enforce the old laws which ban or heavily restrict abortions. Effectively, removing a woman’s right to make her own choice.
It may seem difficult to imagine that a right like this could be removed but, even today, women continue to fight for the right to make their own bodies throughout the world. An example of this can be seen close to home. It was only in May 2018 that the Republic of Ireland voted overwhelmingly in favour to overturn the abortion ban. Prior to this, women were travelling to the UK, often on their own, to undergo the procedure.
There is no doubt that to overturn Roe would be a significant step back for civil rights for women within the western world.
Concerns have arisen that Judge Barrett will be the deciding vote in reversing the Supreme Court decision in Obergefell v Hodges,3 which allowed same-sex marriage. There are now only three members of the majority which remain in Court. Judge Barrett’s views appear to align with the dissenting Justices. After years of fighting for the minority groups, the imbalance in the Court may see this lost.
The UK and USA have very different legal systems. Throughout the UK, judges are appointed to their roles through having years of experience. They are seen to be unbiased and neutral within our judicial systems. The judges that sit on the highest court of the USA are elected. Controversially allowing politics to become heavily intertwined.
As it stands, we are only able to speculate on the impact of her nomination to the Supreme Court. In an already turbulent year for the USA, the election of Judge Barret may be the tipping point. As we have witnessed with the Black Lives Matters movement, the unrest in the USA has the ability to spill over into the rest of the world.
Blog by Emma Wheelshouse, Solicitor
