Abortion in the USA

Rolling Stone Magazine highlights a Texas court ruling which will have the effect of closing almost all the abortion clinics in the state. Separately, they have a longer profile of the conservative activists and campaign groups who are influencing Republican-controlled states to pass laws which make it harder for women to have an abortion.

Strikingly, and tragically, in a state of 27 million people there are fewer than 25 clinics and this number is likely to fall. There will undoubtedly be unforeseen consequences of this.

A former abortion clinic in Texas. Picture Credit: Rolling Stone

For G and P students thinking about Unit 3C or Unit 4C this is a fascinating topic which links issues like the policies of the Democrats and Republican parties with Supreme Court decisions such as Roe v Wade or Citizens United. In addition, the power of the individual states to pass laws which contradict federal law or undermine Supreme Court rulings.

Gay Marriage in USA

Protestors outside the Supreme Court.
Picture credit: Huffington Post 

The case Obergefell v Hodges was heard by the US Supreme Court earlier this week. This is the case asking the Court to force States to recognise the marriage of gay couples on other states. The couple in question (James Obergefell and John Arthur) went to court to get Ohio to recognise the marriage that took place in Maryland in 2013. John Arthur was terminally ill, and Obergefell wanted the state to recognise him as the spouce and beneficiary of Arthur's estate.

The Economist has a leader here about it - which explains the argument in favour (and also explains the argument againist). There is also an article about  the impact of the current situation, where marriage is legal in one state and not in another (pretty horrendous).

Of interest to G and P students in Unit 4C is the analysis that although it is likely to be an activist decision with Roberts and Kennedy in favour of Obergefell this unlikely to be as controversial as Roe v Wade:

Firstly Americans are increasingly in favour:

Picture Credit: The Economist

Also, to quote the leader:

the court ruled in Roe v Wade that it should be legal everywhere, citing a right to privacy that is nowhere mentioned in the constitution. This newspaper favours legal abortion, but in Roe the justices invented the law rather than interpreting it, substituting their preferences for those of voters.

The main argument against seems to be that the allowing of gay marriage across America should be left up to elected representatives to pass a law. The counter to that is that if it is not acceptable to practice discrimination of a, say, racist or sexist type under the constitution, it should also not be acceptable to discriminate against gays.

There is a great timeline in the LA times of the change in attitude of the USA to gay marriage here:

A timeline of the USA's support for gay marriage.
Picture Credit: LA Times

The decision is likely to be revealed in June.

Update July 2015: I forgot to update this in the light of the US Supreme Court decision in June, but worthwhile to record here the momentous decision by the Court that prevents Gay Marriage from being banned in States.  The court voted 5-4 with Kennedy siding with the liberal justices.

Wikipedia's page about the case, Obergefell v Hodges can be found here. The Scotus blog's summary can be found here.

The Atlantic tries to put this all into context here with a summary of the long battle for gay rights.

The White House celebrates the US Supreme Court decision.
Picture credit; CNN

Supreme Court - conservative or liberal?

One of the possible questions which can be asked about the Supreme Court is whether the court is conservative or liberal. I'm not going to go into the theoretical part in too much depth here (afterall, that is what the lessons are for), except to say that any good answer needs to have a thorough understanding of the position of the court in relation to the other branches of the US government, to the Constitution, and to public opinion.

I've come across a great article in the NY Times about the conservatism of the Supreme Court which explains why the Roberts court is more conservative than its predecessors. Political scientists who study such things allocate a label of either "conservative" or "liberal" to the court decisions, and then add up how many of either there are iver the lifetime of the court. There are obvious problems with this methodology, which the article touches on, but nevertheless it is still useful stuff for any essay.

In short, the Roberts court has become more conservative than its predecessors, although not by very much. It has overturned fewer precedents (i.e. previous decisions by the SC), and struck down fewer laws passed by Congress. As I love a graph, look at these two:

The original graphs can be found here and the article here.

The switch was caused by the retirement of Justice O'Connor, who had been the "swing" justice in cased where there was a split 5-4. She was seen as a liberal and was more on the centre-left in her final years. She was replaced by Justice Alito who is one of the highly conservative justices (he is one of the six most conservative justices since 1937, three of the others are all currently on the bench).

The swing justice today is Kennedy, who is less liberal than O'Connor was. Overall the court has moved to the right. The Alito case is interesting (as the NYT shows); he was President GW Bush's second choice as the Republicans rebelled against a more moderate and less conservative Harriet Miers.

The article cites certain key cases, such as the Citizens United v Federal Election Commission (2010) which overturned the earlier decision McConnell v. Federal Election Commission (2003). Essentially the earlier case upheld the constitutionality of restrictions on organisations to spend money and advertise during election campaigns (the McCain-Feingold Act).

The right to abortion enshrined in Roe v Wade (1973) was challenged by Steinberg v Carhart (2000) which wanted to ban Intact dilation and extraction (aka "partial-birth" abortions). The court overturned the law, but in 2007 it allowed the banning of partial-birth abortions through the case Gonzales v Carhart. Although the cases are different, arguably the court's conservative shift is clearly shown here.

The court had not gone as far as overturning Roe v Wade, but certain rights and procedures had been removed.

Another clear area in which the court changed its mind recalls aspects of Brown v Board of Education (1954), which banned race from being a factor in deciding education provision ("separate but equal"). Twice since 2000 the court has decided that race could be a factor when determining education provision, but only in the form of "affirmative action". In general terms this is a policy supported by liberals and Democrats (it was started by Democratic President Kennedy).

Grutter v Bollinger (2003) said that race could be a factor when determining admissions to the University of Mitchigan Law School, and this was upheld by the SC. In Parents v Seattle School District No. 1 (2007) (i.e. after O'Connor's departure) the court decided that race could not be a determining factor when deciding on admissions to high schools, reversing its own decision.

Abortion and race are probably the most obvious and most contentious areas of US political debate, so the cases described above care probably the ones which would be easiest to use (and remember) in an essay. Examiners would be very keen to hear about other areas of political debate too, and if explained fully this might help demonstrate "thorough" understanding and gain more marks.

A health warning must be issued; these cases are highly complex, so it is worth bearing in mind this:

“Supreme Court justices do not acknowledge that any of their decisions are influenced by ideology rather than by neutral legal analysis,” William M. Landes, an economist at the University of Chicago, and Richard A. Posner, a federal appeals court judge, wrote last year in The Journal of Legal Analysis.

Also - while the court is not required to listen to public opinion, largely the public have supported their decisions on race and abortion:

“Solid majorities want the court to uphold Roe v. Wade and are in favor of abortion rights in the abstract,” one of the studies concluded. “However, equally substantial majorities favor procedural and other restrictions, including waiting periods, parental consent, spousal notification and bans on ‘partial birth’ abortion.”

However:

The Roberts court has not yet decided a major religion case, but the public has not always approved of earlier rulings in this area. For instance, another study in the 2008 book found that “public opinion has remained solidly against the court’s landmark decisions declaring school prayer unconstitutional.”

Few! Lots here to mull over, including the fact that overall Supreme Court justices reflect the political persuasion of the President in office when they first joined; Stevens and Souter being the Republican-appointed-and-liberal-voting exceptions. Trouble is, they've gone. The confirmation of Elena Kagan while interesting because she is only the fourth female SC justice in history, doesn't change the court's political direction.