Whilst the latest Supreme Court vacancy offers another opportunity for President Trump to advance his crusade against the right of women to get an abortion, Liberals should not be too concerned.
For Liberals in America, the presidency of Donald Trump has fostered an incredibly conservative agenda at the forefront of American politics. Through adding more conservative voices onto the Supreme Court, Trump’s administration also has the capacity to enforce far more long-term impacts, in the form of shaping the Supreme Court of the United States. But whilst President Trump has made steps towards the criminalisation of abortion, the current partisan balance of the court still makes it unlikely for Roe v. Wade to be revisited or revised any time soon.
The Supreme Court is one of the most secure means by which a President can cement their political legacy, with the position of Supreme Court Justice guaranteed ‘for life and good behaviour’. For example, Antonin Scalia served on the court for 30 years from his appointment in 1986 until his death in 2016, reflecting the strident Conservative beliefs of the President who appointed him, Ronald Reagan. Even in his last year of life he offered a myriad of socially conservative and controversial opinions, with perhaps the most controversial one being when he suggested that black students ‘found elite schools too difficult’ - effectively echoing Reagan’s opposition to Affirmative Action. The relative youth of Donald Trump’s appointees in his first two years means they are likely to uphold and reflect the conservatism of his administration in a similar manner to Scalia in the decades to come.
The appointment of Neil Gorsuch has allowed for the maintenance of the 5 to 4 balance of Republicans and Democrats on the Supreme Court, and ensured the continued presence of ‘Originalist’ understandings of the constitution (an example of such opposition being disagreeing with Roe’s belief in the right to abortion) that were anchored by Scalia’s presence. The securing of this “Originalist” flank of the court looks to be continued under the Trump administration with Anthony Kennedy’s resignation from the court earlier this year, and the nomination of former Clinton impeachment lawyer Brett Kavanagh to replace him. The problem posed by Kennedy’s resignation lies in his uniqueness as an unusually pro-choice Republican Justice, having co-authored the majority opinion of the court upholding Roe in Planned Parenthood v. Casey (1992). With his departure from the court this year, and his replacement more likely than not to oppose abortion, the balance on the Supreme Court between pro-choice and pro-life justices seems like it may tilt towards a pro-life majority. However, liberals needn’t worry for the future of reproductive rights in the United States at this moment.
It is important to remember that the court retains a sizable Liberal wing in Justices Sotomayor, Breyer, Bader-Ginsburg and Kagan. Whilst these four may not form a majority on the court and Bader-Ginsberg’s age is of concern to some, credit should be given to Chief Justice Roberts for maintaining a balance due to his capacity to vote both liberally and conservatively on Supreme Court decisions. Roberts is on record as having a far greater respect for Roe and Casey than his more conservative colleagues, and is almost as likely as Kennedy to vote in favour of pro-choice if the Roe precedent was brought before the court again. Thus, the possibility of a pro-Roe majority to the court still remains a significant likelihood, even with an increased presence of conservative and pro-life voices joining it.