Home Blogs Observations of an Expat: Crunch Time for Justices

Observations of an Expat: Crunch Time for Justices

Observations of an Expat: Crunch Time for Justices

Their decisions will have repercussions on the future of the court, the American justice system and the nation’s social divisions.

By Tom Arms

The US Supreme Court has started one of its most difficult and important sessions in history. It will deal with two of America’s biggest issues—abortion and gun laws. Their decisions will have repercussions on the future of the court, the American justice system and the nation’s social divisions.

First the cases: Abortion is one of the most divisive—if not the most divisive issue—in modern American history. The anti-abortion lobby has worked tirelessly to overturn Roe v. Wade since the moment it became law in 1973. The pro-life lobby has fought just as hard to retain it.

Donald Trump’s appointment of Justices Neil Gorsuch, Brett Kavanagh and Amy Comey Barrett, has given the court a 6-3 conservative bias and the anti-abortion lobby its best chance ever of overturning Roe v. Wade. For the pro-abortion lobby, a decision to uphold Roe v. Wade with the current make-up of the court could, in theory, put the issue to rest for ever.

The case before the court involves the state of Mississippi’s law that bans abortions after 15 weeks. This is not the first time the anti-abortion lobby has attempted a legal challenge. With each previous case the lower courts have rejected the issue because of the primacy of the Supreme Court’s Roe v. Wade ruling. The Supreme Court has previously refused to consider any appeals.

The same has happened in the lower courts with the Mississippi law. The big difference is that the Supreme Court Justices have agreed to hear Mississippi’s appeal. On the surface, this does not augur well for the pro-abortion lobby. And if a decision goes against them 22 Republican states have anti-abortion laws all ready to be enacted in a matter of days.

The disputed gun law involves a New York state move to ban citizens from carrying concealed weapons unless they can provide an iron clad reason for doing so. This, of course, runs counter to the views of gun-toting Second Amendment supporters, the National Rifle Association, its 5 million members and the scores of Congressmen who rely on gun enthusiasts for financial and political support.

This issue is complicated by New York State’s move to demand the dissolution of the NRA as part of its charges that the gun organization is guilty of fraud, financial misconduct and misuse of charitable funds. The organization is also bankrupt. But that won’t deter states such as Texas which actively encourages their citizens to carry concealed weapons.

In both cases the Justices have basically three courses of action. The first is to leave existing laws alone. The third is to radically change the law. That is ban abortion and concealed weapons. The second option is the middle course -tweak the existing law in both or either case. Whichever course they adopt the Supreme Court Justices will anger and alienate large segments of an already seriously divided America and cast doubt over the Supreme Court’s role as the nation’s arbiter.

The founding fathers meant for the Justices to be apolitical Olympian-like beings who deliver judgements based on legal precedent, their interpretation of the constitution and careful consideration and debate. The Justices are nominated by the President but the political element is checked by Senate confirmation. And when they are confirmed, the Justices have a job for life, which, in theory lifts them head and shoulders above the political fray.

The 2000 Bush-Gore election changed that. The debate over Florida’s “pregnant chads” went all the way to the Supreme Court which voted in favor of George W. Bush along strict party political lines. This division has continued ever since—with a few notable exceptions. This is why the anti-abortion and pro-gun lobbies are hopeful that the Trump appointees will swing events their way. Their opponents are girding themselves for a bitter battle before, during and after the hearings.

But strange things happen to Supreme Court Justices when they don their black robes for life. They often become more concerned with upholding the majesty of the law then personal partisan beliefs. All of the current justices—including the three Trump appointees– have used the recent adjournment to tour the country and repeatedly stress the non-partisan role of the court. Chief Justice John Roberts said: “There are no Bush Justices, Obama Justices or Trump Justices. There are only Supreme Court Justices.”

The Supreme Court cannot make laws. That is the job of Congress and the President. They can only accept, tweak or reject on the basis of their interpretation of the constitution and legal precedent. The success of their decisions depends entirely on the general public accepting the wisdom of their judgements. If the public believes that the judgements are politically motivated then there are serious problems.  The Supreme Court and the entire American legal system is undermined.

World View - Observations of an ExpatWorld Review

  • Ethiopian Prime Minister Abiy Ahmed has painted himself into a lose/lose corner with his 11-month-old war against the Tigrayan People’s Liberation Front. If he wins the war it will be at a heavy cost in international prestige which will impact on aid and trade as well as leaving a bitter taste in the mouths of six million rebellious Tigrayans. It will also raise concerns with other constituent parts of Ethiopia’s ethnically-organized and politically shaky federation. If he loses, well he’s dead, politically, and quite possibly, literally. If the conflict drags on much longer then the almost certain danger is that it will spread first throughout the rest of Ethiopia and then beyond to other countries in the strategic Horn of Africa. Ethiopia is landlocked but unstable Eritrea and Somalia guard the southern shore of the vital Red Sea entrance to the Suez Canal, and Djibouti hosts French, Chinese and American bases. Fear of contagion is the main reason the US administration has finally decided to become involved. President Joe Biden has already imposed personal sanctions on Abiy Ahmed and his close colleagues, but this week US Trade Representative Katherine Tai warned that Washington was on the verge of slapping trade sanctions on $525 million of Ethiopian exports to the US. The EU, UK, Japan and Australia are expected to follow suit. Also at risk is $1 billion a year in aid from the World Bank. The large Ethiopian diaspora, who is making a significant contribution to financing the showcase Grand Ethiopian Renaissance Dam, is also being isolated. Neither Russia nor China are likely to be tempted to fill the vacuum as they are equally worried about regional stability. While the major powers dither and debate millions of Tigrayans have been cut off from food aid, telephones, the internet, electricity, water supplies and banking facilities. Their escape route to Sudan has been blocked by Ahmara forces. They are facing the real possibility of an Abiy Ahmed-made famine to rival that of the 1980s.
  • Pronouncements from dismissed Downing Street Svengali Dominic Cummings should be generally viewed with extreme scepticism. But his claim that PM Boris Johnson never had any intention of honoring the Northern Ireland Protocol he negotiated has—in the light of subsequent events—the force of logic behind it. Cummings timed his latest bombshell to coincide with a new round of re-negotiations between Britain’s Brexit negotiator Lord David Frost and his EU counterpart Maros Sefcovic. Under the Northern Ireland Protocol, the province remains in the EU single market for goods. This protects the Good Friday Agreement but undermines the Protestant-dominated Unionists and makes it difficult to import goods from mainland Britain. In a speech in Portugal Lord Frost took the hard line and threatened to trigger Article 16 which allows either side to introduce “safeguards” if serious problems arise. Sefcovic’s response was fairly conciliatory with offers to improve British access for medicines and most food products and other concessions. But there remains one non-negotiable sticking point: Legal oversight in Northern Ireland of the European Court of Justice. Lord Frost says it must go and Sefcovic says it must stay.
  • The primacy of the European Court of Justice is also the nucleus of current EU problems with Poland. The country’s Constitutional Tribunal recently ruled that key articles of one of the EU’s primary treaties were incompatible with Polish law. This has raised the spectre of Poland following Britain out of the European Union or “Polexit”. And if Poland goes they could be followed by the other Visegrad countries Hungary, Slovakia and the Czech Republic– and possibly others. The Polish government has said that leaving the EU is not in its future plans. But it is difficult to envisage how rejecting the primacy of EU law squares with membership of the club. Who determines the law—sets the rules—is at the legal heart of every political structure. It is one of the main reasons that Britain left the EU. It is bedevilling talks on the Northern Ireland Protocol. Even the constitutional court in rabidly pro-European Germany has problems with it. EU legal jurisdiction is a vital first step towards political union and essential for monitoring and enforcing Europe-wide regulations of the single market. But it infringes on national sovereignty. Therein lies the crux of a problem that desperately requires a solution.
  • Have the Russians weaponized exports of natural gas to Europe? Maybe and then… maybe not…or maybe a bit. The Kremlin have used their natural resource for political purposes in the past. They shut down the pipeline to Ukraine and sell cheap energy to Belarus. It is also true that there has been some diversion of natural gas to China. But that may be because the Chinese are willing to pay top dollar and then some. The International Energy Agency, European Parliament and European Commission have questioned whether or not Russia is using its stranglehold on gas supplies to wrest political concessions from Europe. But against that is the fact that production by the Russian gas monopoly Gazprom is down because of Covid-19 and that trade is an interdependent two-way street. Europe needs the gas and the faltering Russian economy desperately needs the cash. Europe receives thirty percent of its natural gas from Russia via a bewildering web of pipelines, including the recently completed and controversial Nordstream two. The rest comes mainly in liquefied natural gas oil tankers from the US and Persian Gulf. However, a staggering 50-60 percent of Russia’s natural gas goes to Europe. The exports represent five percent of Russia’s GDP. So what does Russia need, more– money or political concessions?
  • Lebanon took another giant step towards failed state status this week when terrorists killed seven and seriously wounded dozens of others outside the country’s main court. The most likely culprits are a breakaway Maronite Christian group trying to influence the inquiry into the Beirut port explosion that left 219 dead. The spectre of renewed sectarian violence is being added to the collapse of the economy, raging inflation, absence of any government control and a destructive controversy over alleged bias by presiding judge Tarek Bitar into the port explosion inquiry. The good news—if it is good news—is that the Lebanese are being left alone to decide their own fate. The Israelis do not want a repeat of the disaster of their intervention in the 1980s. The Turks are uninterested but watching, and the Syrians are self-absorbed with their civil war. Iran is the only outside power sticking in its oar and is making a substantial impact through support of Hezbollah, but it does not appear willing or able to go beyond that to direct intervention.

[author title=”Tom Arms ” image=”https://sindhcourier.com/wp-content/uploads/2021/05/Tom-Arms-Journalist-Sindh-Courier.jpg”]Tom Arms is foreign affair of Liberal Democrat Voice. His book “America Made in Britain” is published this week.[/author]