Rise of conservatism in Supreme Court of United States
By Abdul Wasay Ajmal
Nations States are often studied and evaluated through their systems of governance. Good governance is considered to be the most important metric in ascertaining its importance in the international system. Since its inception, the concept of a state and its pillars has been debated in the academic spheres. It can be argued effectively that institutions of a state have a pivotal role to play. Governments rely upon such institutions to ensure its sovereignty and to uphold law and order. In this regard the role, influence and the importance of the judiciary has to be taken into account. The Judiciary is the sole authoritative body which provides the platform to adjudicate issues pertaining to the precise application of the law. All manner of cases pertaining to individuals, groups or organizations are given a due legal process through which they can claim their rights as prescribed in the constitution (Tate 2018). Courts in this manner play an important role in maintaining law and order and ensuring that judicial process in followed in cases concerning mainly the local population.
The United States Supreme Court is the primary body ensuring that all practices pertaining to law and justice are upheld and that the American people are given their due rights of justice, equality under the law according to the underlined articles of the Constitution. Being the highest tribunal in the country it is also charged with ensuring the correct interpretation of the Constitution (Supreme Court of the United States 2021). The United States Supreme Court held great importance and influence in governmental and civil affairs. It has not only provided due civil rights and justices to the American people but has also monitored bills passed in Congress and executive actions taken by government officials. The “Judicial review” is an important element which highlights the importance and influence of the Supreme Court in executive decisions. These actions are scrutinized by the judges who ensure that the legislation do not violate the sanctity of the Constitution of the United States.
The structure and jurisdictions of the Supreme Court has seen changes of various degrees since its establishment. What are most significant are the ideological positions of some of its most prominent judges. These ideological stances have had an impact on the court cases presented before the court and in the acceptance and ratifications of bills passed in Congress. An overview of the judicial bench shows a fairly balanced group of judges having both conservatives and liberals at the opposite ends of aisle. However growing political rifts, rise of right wing movements and a pro-majoritarian government has led to an increase in conservative voices in the Supreme Court. Being deeply interconnected with the affairs of the government, the Supreme Court is not averse to the changes in the political landscape.
The rise of the conservative legal force in the United States is an interesting phenomenon in itself. The battleground between the conservative and liberal fraternities has always been on the interpretation of the Constitution and the approval of policies by the executive and legislative branch of government. In the famous book The rise of conservative legal movement: The battle for the control of the law, the author StevenM. Teles argues that conservatives in their attempt to gain control over the judicial bench, realized the need to set long term objectives. For this, they set about establishing their presence in law schools, legal institutions, and legal rights groups in order to sway the ideologies of future judges to be. This process however did not at times produce the required results (Teles 2008).
The Supreme has had to deal with multiple issues such as gay rights, abortion, civil liberties and gun control. Ideological stances of the judges have been suggested to be important factor in the decisions made by the judges. Since the approval of the judges was done by the Senate, therefore it also then became a question of who controlled the senate. A Republican controlled senate has traditionally approved conservative judges. Republican Presidents have nominated conservative judges as their main selection. The Carter and the Reagan administration sought to select conservative judges and thereby decreased the diversity on the judicial bench. This phenomenon was also seen during the presidency of Republican President George Bush (Tobias 2019). Conservative mindset also prevented judicial activism. Conservatives judges showed a general trend of judicial restraint thereby focusing more on the Constitution.
Under Donald Trump it was heavily expected that a conservative judge would be selected basing on his previous political record or promoting conservative practices (Nagel 2017). President Trump who relied heavily on Senate Majority leader Mitch McConnell for the selection promised to install judges who would follow conservative ideological footsteps. This then left little room for diversity and an equal representation of the American society on the judicial benches. This also created another issue as by focusing more on the ideological stances of the judges in Federal courts, experience, qualification and expertise of other more qualified judges were overlooked. This had an impact on the decisions made and passed by the Supreme Court. According to PEW, Donald Trump has made 3 Supreme Court nominations and by appointing Amy Coney Barnett as a replacement of the liberal judge Ruth Badar Ginsburg it has tipped the judicial 6-3 in favor of the conservatives (Greenberger 2021). Its impact on the rulings of the Supreme Court can be ascertained to be in favor of the conservative ideological stance.
The United States Supreme Court has shown a steady rise in conservative practices and decisions drawn from a conservative ideological perspective. As argued above, judicial courts in the United States are not averse to the changing political landscape in the country. Republicans have generally held a tradition of anointing conservative judges as the heads of judicial departments. In this context, important court decisions reflect conservative beliefs regarding politics, economy, social security and civil rights. The famous case of “EXXON SHIPPING CO. et al. v. BAKER et al” can be studied as an example. The supertanker Exxon grounded on a reef of Alaska spilling millions of gallons of crude oil in Prince William Sound. Cases were brought up against the shipping company demanding a payment of the damages done to the people who relied heavily on the area for resources. After having initially heard the plea, the shipping company was held responsible and had to pay 5 Billion dollars in damages. However fines were later reduced 500 million dollars after it was argued that Exxon shipping Co. couldn’t be made subject to punitive damages (Cornell Law School 2008). This case which had a ruling of 5-3 allowed the shipping company to pay a reduced level of fine. The conservative bench had a significant role to play as it believed that private companies should be allowed room for open and free trade.
Another famous case is that of Shelby County v. Holder in 2013 which was criticized by the liberal bench for violating the basic civil rights of the American people. The Alabama court initially filed a law suit in which Section 5 of the voting rights was declared unconstitutional. The section was a vital piece of ruling which ensured that minorities were given equal rights to vote and that any changes were to be submitted to the Department of Justice. The Supreme Court however in a land mark ruling declared the coverage formula in Section 4(b) to be unconstitutional thereby in effect making Section 5 of the voters right act inoperable (Brennan Center for Justice 2018). This decision highlights how conservative judges reversed an important clause in the article thereby giving preference to the majority based on race. Ideological foundations of conservative judges have shown a support for legislations in which the majority “white people’s society” is given preference.
Connick v. Thompson is another famous Supreme Court case which shows a dominant conservative bench not only holding that a District Attorney’s office could not be held responsible for a ‘lack of training’ of its personnel. The Court then also further went on the disallow John Thompsons allowance of 14 Million Dollars as a compensation for his imprisonment of 20 years over a crime which he had not committed. Thompson an African American had been wrongly accused of murder and sentence to imprisonment and was death row for most of his life. The decision made by the bench was ideologically motivated as it disallowed the compensation package which was due to Thompson. The decision was criticized by the majority of legal fraternity who criticized it mainly for not charging the prosecutors for the legal damages done (Nicholas 2012).
Another famous decision by a conservative Supreme Court bench was made in the case of campaign financing. The Federal Election Campaigns Act “prohibits corporations and labor unions from using their general treasury funds to make electioneering communications or for speech that expressly advocates the election or defeat of a federal candidate. 2 U.S.C. § 441b” (Martin 2010). The act prohibits corporations and labor unions from using funds to support a candidate running for office. Electioneering communication strategy is prohibited under this law. On January 2008 Citizen United released a film about senator Hillary Clinton and sought to challenge the acts rules and regulations. The Supreme Court’s decision then allowed corporations to engage in what was termed as “free speech” under the First Amendment. This then paved the way for corporations to then use the platform to promote right wing republicans and ultra-conservatives that would then move on to hold public office. This conservative rationale to provide and support free speech would enable movements such as the Tea Party movement in the United States (Martin 2010).
Conservative movements in the United States have often supported far right religious movements. Ultra-conservatism has often gone hand in glove with far right religious institutions aimed at returning to old religious doctrines. The ESPINOZA ET AL. v. MONTANA DEPARTMENT OF REVENUE ET AL was a case decided in favor of far right religious organizations. According to the Supreme Court decision, public money under the Montana Tax initiative can be used for funding private religious institutions. This has been touted as a victory by the secretary of education and garnered praise from far right religious groups. This according to civil rights groups is seen as an attempt to “join church with state” with public money being used for improving religious institutions (Strauss 2020).
The United States Supreme Court has played a pivotal role in the decision making process of the United States government. Today it holds great power and influence in the deciding and clearing legislation and executive decisions. The power of the Supreme Court lies in its ability to mitigate and solve cases pertaining to American citizens. The court has been often regarded as the living manifestation of the United States constitution. Being the highest office in the judiciary sphere, it’s decisions and the judges appointed at the bench have far reaching ramifications. Throughout its history the Court has had a rough balance of liberals and conservatives appointed by the President and cleared by the Senate. Being an interconnected body having a complicated relationship with the government, the Court has been influenced by rising political far right movements and conservatives holding public office. Judges appointed to the Supreme Court, having a conservative ideological stance have through time given decisions based on their ideological stance. These decisions till date have had their consequences. Current President Joe Biden faces a divided American nation with far right groups exerting their influence. It remains to be seen how the Supreme Court of the United States interacts with a liberal democratic president seeking to forge a more inclusive tolerant America.
Brennan Center for Justice. “Shelby County v. Holder.” Brennan Center for Justice, 2018.
Cornell Law School . EXXON SHIPPING CO. v. BAKER. (No. 07-219), New York : Cornell Law School , 2008.
Greenberger, Scott S. “Trump-Appointed Judges Fuel Abortion Debate in the States.” PEW , 2021.
Martin, Myles. Citizens United v. FEC (Supreme Court). U.S. Supreme Court No. 08-205., Washington : Federal Election Commission , 2010.
Nagel, Robert F. “Conservatives and the Court.” National Affairs , 2017.
Nicholas, Claude. “Connick v. Thompson: Unclear Motives Behind a Misguided.” University of Mar ersity of Maryland F yland Francis King Car ancis King Carey School of Law y School of Law, 2012: 92-124.
Strauss, Valerie. “How the Supreme Court’s decision on religious schools just eroded the separation between church and state.” Washington Post , 2020.
Supreme Court of the United States. “The Court and Constitutional interpretation .” Supreme Court of the United States, 2021.
Tate, C. Neal. “Judiciary .” Britannica , 2018.
Teles, Steven M. The Rise of the Conservative Legal Movement: The Battle for Control of the Law. New Jersey : Princeton University Press , 2008.
Tobias, Carl. “President Donald T esident Donald Trump’s War on F ar on Federal Judicial Div al Judicial Diversity .” Richmond School of Law , 2019: 532-574.
Abdul Wasay Ajmal works at China Pakistan Study Center at the Institute of Strategic Studies Islamabad and is a student at National Defense University Islamabad.