Judicial Politicization in U.S. Abortion Ruling

On June 24， 2022， the U.S. Supreme Court overturned its 1973 landmark Roe v. Wade ruling made by the preceding Chief Justice and held that the right to abortion was not a natural civil right under the U.S. Constitution， but should be left to the states to decide， which means that the right to abortion will be denied for over half the number of women in the United States. In the United States which adopts the case law， the Supreme Court rarely overturns its own precedents， and it is even rarer to deprive individuals of their established rights by overturning precedents. The ruling is a symbol of the fierce battle between liberals and conservatives over a sensitive social issue in the United States， against the backdrop of a recurring game between Democrats and Republicans. In the process， the hidden flaws in the U.S. political system are thoroughly exposed.

PARTISAN BATTLE BEHIND ABORTION RULING

In recent years， as the U.S. society has become more polarised， the judiciary， traditionally considered to be above the political parties， has increasingly become involved in abortion issues in an explicitly partisan manner and the judicial process surrounding this issue has become an important perspective to observe the bipartisan struggle.

First， bipartisan struggle over the selection of justices. The selection of the U.S. Supreme Court justices is most indicative of the intensity of the bipartisan struggle. Obama once had the opportunity to appoint a justice during his last year in office， yet the Republican-controlled Senate refused to put it on the agenda， citing too tight a time frame with only nine months left. However， in the final moments of Trump’s term， the Senate passed all the procedures for appointing a justice in less than one month， putting partisanship on full display. The Senate also adjusted the 60-vote requirement for voting on justice nominees to a simple majority in 2017. As a result， both parties moved away from looking for neutral and moderate candidates with more buy-in and turned to favouring “fit” candidates with a clear leaning and a clear side. Trump’s success in appointing three justices during his term brought the ratio of conservatives to liberals within the Supreme Court to 6 to 3， which has been widely regarded as his greatest contribution to the Republican Party.

Secondly， political implications in the acceptance and adjudication of cases. The Supreme Court of the United States receives thousands of petitions each year， but only a few dozen of them are selected for consideration. The decision to hear the Mississippi abortion case itself serves as an indication of the Supreme Court’s position. During the case， despite the unprecedented leak of the draft judgment and the widespread public outcry， the final version of the judgment continued to uphold the rejection of the previous jurisprudence. Since its establishment， the Supreme Court has overturned only 0.5% of its past jurisprudence. The series of manifestations fully show that the conservative justice was determined to deny women the right to abortion.

Third， sharp antagonism of voters between the two parties. American voters have shown clear partisan incline on the issue of abortion. According to a Pew poll on July 4， 2022， 82% of Democrats opposed the Supreme Court decision， while 70% of Republicans supported it. It clearly shows that voters’ positions on the abortion decision are divided along partisan lines， with party affiliation being the dominant factor.

Fourth， antagonism between the two parties at the federal level. The draft judgement of the Supreme Court was suddenly leaked in May 2022. The Democrats in the Senate attempted to establish the Roe v. Wade decision into law， but failed in the vote. With the conservative Democrat Manchin’s backtrack as an exception， all other MPs sided entirely along party lines. Following the Supreme Court’s ruling， President Joe Biden signed an executive order on August 3 to facilitate abortions for women in various ways. And the Democratic Party has placed greater emphasis on increasing voter mobilisation as its counter-measure. Biden has repeatedly called on pro-abortion female voters to get out and vote in the midterm elections to help Democrats gain more seats in the Congress to facilitate more legislation through Congress that protects their rights to abortion.

Fifth， fight between the two parties at state and local level. After the announcement of the Supreme Court’s decision， abortion bills that had been drafted in quite a number of Republican states were automatically put into effect upon activation. Missouri is set to treat the mailing or delivery of abortion pills as drug trafficking， while Texas plans to prohibit residents from traveling out of state for abortions. The Democrat-controlled blue states went tit-for-tat with them. California is planning to amend its state constitution to put the right to abortion under constitutional protection， which would make it much harder to restrict abortion even if the state falls to the Republicans in the future. Some liberal leaning federal district judges have also prohibited automatic activation of abortion bans in conservative states to buy more time for women who need abortions.

EFFECT OF INSTITUTIONAL FACTORS ON POLITICIZATION OF JUDICIARY

The United States has always prided itself on its “independent judiciary”， and the checks and balance placed on the legislative and executive branches by the judiciary have indeed to some extent helped with the stabilisation of the political system and prevention of the long-term damage that extremist thinking and speech may cause to the society. However， the judicial system which was originally designed as a check and balance has in recent years constantly acted as a veto against the majority of public opinion， and has become a de facto judicial dictatorship. The influence of institutional factors in the process of alienation of the role of justice shall not be ignored.