The Election and the Supreme Court:Where Do We Go From Here?
On Saturday, November 7th, a nation erupted with cheers, dancing, and tears (both of joy and sadness) as numerous news outlets projected that Vice President Joe Biden had become the 46th President-Elect and Kamala Harris would soon become the first woman, black person, South Asian person, and biracial person to be Vice President of the United States. My roommates and I, too, joined in the celebration, hugging each other and calling our families while Van Jones flowed tears of relief on the television screen. Many thoughts bubbled up and fleeted in people’s heads that day, but I am still anxiously wondering: what does this mean for the Supreme Court?
Barely a week prior, President Trump’s newest Supreme Court nominee, Amy Coney Barrett, was sworn in as an Associate Justice. Justice Barrett became the fifth woman to serve on the Supreme Court and her conservative view of the law has made the Court predominantly right-leaning. Although Justice Barrett refused to discuss her opinions on Roe v. Wade -- the opinion that protects Americans’ access to safe abortions -- during her confirmation hearing, various sources have identified writings authored by Barrett criticizing the protections granted by the Court in this case.
In the spring of 2020, I wrote about the future of Roe v. Wade; today, I have less of an answer about its future than I did six months ago. The Supreme Court is the most ideologically unbalanced it has been in recent years, as six of the nine justices are conservative-leaning, and many Republicans want to see Roe v. Wade overturned. There are not any cases currently on their way to the Supreme Court that would allow the justices to revisit the federal laws protecting abortion. However, anti-abortion politicians in various red states such as Alabama, Georgia, Louisiana, and Ohio have instated extremely restrictive laws, such as Louisiana’s Act 620, which was challenged in June Medical Services LLC v. Russo. If the Supreme Court were to grant a writ of certiorari for a similar case, it is possible that Roe v. Wade could be reversed, given the Court’s conservative majority.
However, do the new President-Elect and Vice President-Elect bring some hope for Roe v. Wade? Unfortunately, there is not a clear answer. The judiciary is fairly independent of the executive branch, meaning that even if the Biden administration disagrees with rulings made by the Supreme Court, there is very little it can do to contravene the Court’s decisions. Many Democrats are pushing for Biden to consider radically altering the Court through term limits, including a definitive retirement age or increasing the size of the court, a concept known as court-packing. Prior to her death, Ruth Bader Ginsburg expressed her concern with and opposition to court packing. She explained that doing so would benefit the Democrats when they are in power, but it also would wound them during Republican presidencies. President-Elect Biden definitely has his work cut out for him: he must please his party while also charting a path that will protect Americans’ constitutional rights.
I wish I could say that there is an obvious way forward for American constitutional law. There is not. There are a lot more unanswered questions than there are answered, but we must remain hopeful. We must stay informed and keep advocating for the protection of our basic human rights, such as the right to control our own bodies. We are the people after all, and our government has the responsibility to protect our rights.