Jonathan Sumption Lord Sumption is a former justice of the UK Supreme Court.
First published: Thursday June 30 2022, 12.01am BST, The Times
Alexis de Tocqueville, the great French political scientist, two centuries ago observed in his book Democracy in America that “there is scarcely any political question in the United States that does not ultimately resolve itself into a judicial question”.
There are lawyers in Britain who look enviously at the awesome power of the US Supreme Court to protect liberal values against the populism and prejudices of the political process. Last week’s decision on abortion should make them pause for thought.
In the landmark 1973 decision in Roe v Wade, an earlier generation of Supreme Court judges had held abortion to be a constitutional right, absolute in the first three months of pregnancy and almost absolute in the second. The precedent stood for half a century and was applied by US courts at every level right up to the Supreme Court itself.
But in Dobbs v Jackson Women’s Health Organization, the court has declared it to have been wrong from the outset; not out of date, not overtaken by legal developments or medical advances — just wrong.
The judgment means that abortion is no longer a constitutional right, but it does not settle the issue. It simply refers the matter to the states. Some states will ban abortion altogether. Others will authorise it under a more or less liberal framework of clinical regulation. Nevertheless, the decision has provoked an outburst from the partisans of each side, which is in danger of obscuring the real issue; how should we make law on controversial political issues in a democracy?
Abortion is a difficult and emotive issue because it depends on two conflicting public interests of moral and emotional significance. One is the autonomy of individuals from the interventions of the state in their most intimate affairs, in this case a woman’s right to control what may be done with her body. The other is the protection of human life.
The law can recognise human autonomy and human life as public interests entitled to legal protection. However, the question of which is weightier when they conflict is necessarily political. Americans are deeply divided, with about 60 per cent identifying as “pro-choice” and about 40 per cent as “pro-life”.
There is no legal principle capable of resolving this debate. The circumstances in which the question arises are too varied to admit of a single answer. The views of individuals will depend on their moral values and on the intensity of their emotional commitment.
A judge faced with such a question is no better off. They have no juridical tools at hand with which to resolve the conflict. They have only their personal moral and emotional preferences.
Behind the structured legal arguments in last week’s judgments, it is not difficult to discern that the real difference between the justices and their predecessors in 1973 was that they had different preferences. The majority were conservative Republican Catholics, whereas their predecessors were liberals. Nothing else has changed.
It is difficult to regard a decision as law that is so sensitive to the feelings of nine individuals. That applies as much to the original Roe v Wade ruling as to the decision to overrule it. Both are politics in solemn tones and black robes.
The vice of judicial legislation in a democracy is that it makes law in a way that renders the opinions of the electorate irrelevant. When the courts profess to be interpreting the constitution, the result is also immune from political change, barring a constitutional amendment or a judicial change of heart.
This has been a constitutional disaster for the US. It has meant that the only way that the voters can make their views felt is to stuff the court with people of their own political persuasion. Since the mid-Seventies, the Republican Party has tapped into this stream, and made changing the political complexion of the Supreme Court part of its programme.
Presidential elections have become fights for the right to appoint politically partisan justices. Confirmation hearings in the Senate have become abrasive political wrangles. On abortion, gun control, election finance, same-sex relationships and other contentious issues, justices regularly divide according to the political colour of the president who nominated them.
President Trump nominated three justices whose accession to the court altered its political complexion and made the decision in Dobbs possible. This may prove to be his most enduring legacy. His nominees will dominate the court for decades.
The result has been to politicise the judiciary and undermine the legitimacy of its decisions. The crowds who came onto the streets to celebrate or denounce the latest decision were not responding to its legal reasoning but to the political outcome. To them, judicial decisions on moral dilemmas are politics by other means. They are not far wrong.
Lord Sumption is a former justice of the UK Supreme Court