Roe vs Wade: Myth of the ideologically neutral judge


Forty-nine years ago, in 1973, the United States Supreme Court passed Roe v. Wade, recognising that the US constitution protects a right to obtain an abortion. Then and now, abortion remains a political faultline in the United States, and overturning the judgment has been a key electoral issue. Presidential candidates were expected to state their views on overturning the judgment while they campaign. In June, the United States Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. Roe had held that the government could ban abortions after the point of “viability”, at roughly 24 weeks of pregnancy, when a foetus can survive outside the womb. In Dobbs v. Jackson Medical Center, the US Supreme Court did away with this balancing act, holding that there is no constitutional right to obtain an abortion.

Dobbs gives insights into how the institutional design of the US Supreme Court influences American politics. During his presidential campaign, Donald Trump had vowed to appoint judges to the Supreme Court who would overturn Roe v. Wade. Even though he was a single-term president, Trump delivered on his promise. In Dobbs, the US Supreme Court split 6-3, with five judges writing a majority judgment overturning Roe. Three of those five were Trump appointees – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Asked about Roe during their confirmation hearings before the Senate Judiciary Committee, all three maintained that they would respect the law of precedent. But the Dobbs majority struck down Roe squarely, finding that it was wrongly decided and hence ought not to be protected as precedent.

Even though Trump was not re-elected, his impact on American politics will easily last for at least another 25 years through the judges he appointed. Unlike in India, US Supreme Court judges enjoy life terms, with no retirement age. Trump’s three appointees are now in their 50s. Life terms mean that a single judicial appointment can influence the leaning of the Court – and the country – for decades. By contrast, Indian Supreme Court judges retire at the age of 65, ensuring a constant churn of judicial philosophy.

The US also has a small Supreme Court, with only nine judges who all sit together to hear and decide cases. Increasing the size of the court is unthinkable in the US. The last politician to seriously threaten to “pack the court” was Franklin D Roosevelt, who forced a recalcitrant Supreme Court to back down and uphold the New Deal. In 2021, the Presidential Commission on the Supreme Court of the United States, established by Joe Biden, issued a recommendation that judges’ life terms be done away with, but cautioned that increasing the size of the court was politically unacceptable. By contrast, India has gone the other route, choosing to periodically enlarge the size of the Court, from seven when the Court was established in 1950 to its current strength of 34 judges.

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In a small court, with political appointments, it is often the “swing vote” judge who emerges as the most powerful. Till recently, that judge was Chief Justice John Roberts. But Dobbs shows that the chief justice no longer enjoys this hold over his colleagues, as there are five conservative votes on the bench who do not need the swing vote to achieve their goals. In India, because the Court sits in different-sized benches, and the constitution of benches keeps changing, no one judge can emerge as an all-important swing vote.

Further, the American appointment process is very clearly political. Judges are nominated by the President, but the US Senate votes on whether to confirm the nomination. The Senate Judiciary Committee hearings can last for days, with candidates being questioned on live television on all aspects of their career, their previous judgments, and political and legal opinions. In India, the collegium system has helped insulate the appointments process from the ideological leanings of the government of the day. Of course, judges have a judicial philosophy, but it is not so closely tied to the plank of a particular party or individual politician.

This is not to say that one system is better than another. But the Dobbs decision is a case study showing how the institutional design of constitutional institutions has real political outcomes. The US judicial system works with a myth that judges are ideologically neutral even though they are selected through a clearly political process. The Dobbs judgment belies this myth. All six of the judges who struck down Roe were Republican appointees, and the liberal bloc, which upheld Roe v. Wade, consisted of three judges appointed by Democratic presidents.

Dobbs implies a conservative shift in the US Supreme Court that will go much further than abortion rights. With a solid five-judge conservative majority in the court, conservatives no longer need to tow a middle path to attract a swing-vote colleague. The Senate has been dominated by Republicans since 2015 and is currently evenly split between Democrats and independents voting with them on the one hand and Republicans on the other, making it difficult to pass laws based on a Democratic agenda. The Court now leans conservative as well, leaving only the office of the President in the hands of the Democrats. Trump himself may seek re-election in 2024, buoyed by having successfully delivered to his base the historic overturning of Roe.

The writer is a lawyer

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