Within the framework of the Constitution, careful attention is allocated to the three branches of government. American politicians elevate checks and balances or counterbalancing influences by which an organization or system is regulated, as a pivotal safeguard from democratic decline. Contemporary events, however, beg to differ. In the wake of Donald Trump’s presidency, the legitimacy of the American judiciary is being called into question.
More specifically, constituents across the States are watching wide-eyed as the Supreme Court decides whether or not Roe v. Wade will be overturned. Judicial legitimacy refers to the idea that judges are impartial and driven by law in their decision-making the right to abortion is a highly prevalent social issue, specifically for women. Ramifications of this decision will run far and wide across the country, and will ultimately set the stage for judiciary legitimacy in the eyes of many American people.
Roe v. Wade, decided in 1973, set the foundation for a woman’s right to abortion as it held that a set of Texas statutes criminalizing abortion in most instances violated a woman’s constitutional right of privacy. This grants a woman some semblance of bodily autonomy.
Precedent typically plays a major role in the cases decided by the Supreme Court. Also, known as stare decisis, precedent refers to the American legal principle establishing that similar cases should be decided alike. Therefore, when a case questioning a certain constitutional principle is decided, precedent typically causes any future cases to be decided in a similar light.
However, multiple factors influence decision-making in the federal judiciary: political pressure, cognitive bias, societal pressure, legitimacy, etc. Therefore, despite the pressure of the milestone precedent established by Roe v. Wade, there is no guaranteeing the Justices will maintain their 1973 ruling.
In relatively “progressive” nations, democratic backsliding manifests differently than overtly autocratic regimes. However, mechanisms of stealth authoritarianism are proliferating throughout developed nations. By definition, stealth authoritarianism refers to legal ways in which governments devalue democratic institutions and practices in a country. A specific means for stealth authoritarianism focuses on the judicial wing of the government. Stacking the court, leveraging polarization, and delegating controversial political questions to the judiciary all serve as examples of stealth authoritarianism – all of these means have been employed by governmental officials in the United States in recent years.
Justice Ruth Bader Ginsburg’s passing in 2020 was and remains monumental for the United States Supreme Court. She was the second-ever woman to serve on the Supreme Court. For 25 years, she built a legacy as a trailblazer for gender equality. She also consistently voted on the left side of the partisan aisle. Former President Donald Trump systematically consolidated power by nominating Amy Coney Barrett for the chair.
Her new position as an associate establishes a clear lean right within the judiciary. At face value, it may not appear consequential to the future of American politics. However, this move is exacerbated by already major threats to democracy: political polarization and growing economic inequality.
In recent years, state legislatures have called this decision into question by passing strict legislation surrounding abortions. Texas, for instance, passed legislation banning abortion after six weeks of pregnancy. Arkansas, Alabama, Oklahoma, Mississippi, and more have been the subject of several ACLU lawsuits as a result of their laws detailing the rights to abortion within their state.
The contention of this case exposes many legal avenues that have been taken by American elected officials to preserve their agenda. The polarization among Democrats and Republicans has widened further and further, provoking mass political debates over many social services and liberties: race, ethnicity, gender equality, the right to marry, etc. Trump capitalized on this strife by swearing in Amy Coney Barrett. As a populist leader, his charisma wins people over. He capitalizes on the feelings of individuals who feel that their desires are ignored in political conversations.
Legally, her nomination breaks no rules. Nominating a woman was tactful because it posits some “progressiveness,” which even serves to preserve legitimacy. To an individual not well-versed in the federal judiciary, the placement of a woman on the Supreme Court would resemble forward-thinking in a democratic sphere. However, her tendency to vote conservatively and strict adherence to Catholicism must not be ignored. As a very conservative, populist President, Donald Trump effectively stacked the court in his favor by elevating a conservative judge. He strategically fixes the Court to vote in his favor without any illegal efforts.
With Justice Stephen Breyer’s announcement to retire, President Biden is in a position to alter the judiciary in his – and his party’s – favor. The coming year will tell. In the meantime, a vote to overturn Roe v. Wade would severely degrade the Court’s legitimacy.
As an institution, the Supreme Court is expected to abandon partisan views. Overturning Roe v. Wade would align with a traditionally conservative outlook.
Legitimacy also primes legislatures for acting upon judicial decisions. Without legitimacy, state legislatures do not feel accountable, which may lead to further political tension through delayed policy, etc. Legislatures are the machines for judicial proceedings. Without the judiciary’s check over the legislative branch, democratic erosion is not a matter of “if,” but “when”.
The polarized conversation around women’s rights on the contemporary political stage exacerbates the press surrounding Roe v. Wade. It is an important decision in and of itself. Looking towards the future, though, political scientists, lobbyists, elected officials, and voters should pay attention to decisions like these. This decision will manifest as a predictor for future federal judicial decisions, and ultimately, the health of American democracy.