WASHINGTON.- There is an expression that many politicians in the United States, Democrats and Republicans, repeat ad nauseam: “the best country in the world.” Ronald Reagan spoke throughout his political life, including in his last message from the Oval Office, of “a shining city on a hill.” Madeleine Albright said that it was “the indispensable nation”. Barack Obama said in his career-launching speech in 2004 that America was a “beacon of freedom and opportunity,” and its constitutional freedoms were “the envy of the world.” There are those who defend the notion of a “American exceptionalism”the belief that the United States, and above all, its political system, is one step ahead.
That vision collides with reality.
A thread of judgments of the Supreme Court of Justice, in which stands out the ruling that after almost half a century revoked the constitutional protection that the right to abortion had, consecrated a conservative restoration patiently forged over decades, which marked a turning point against the world, and the image and history of the country. A minority ended up imposing itself on the majority in the oldest democracy on the planet, that was devalued, more tense, more unstable, and more vulnerable.
Abortion has always been the harshest and most visible of all cultural battles. Amanda Allen, director of The Lawyering Project, an organization that seeks to defend abortion access, called the court’s ruling “a big step backwards.” Abortion is still legal, but not throughout the country. “This is the first time in the history of the United States that the Supreme Court recognizes a constitutional right and then removes it,” Allen lamented. From the opposite sidewalk, Catherine Glenn Foster, president of Americans United for Lifeone of the national organizations that worked tirelessly to change the legislation on abortion, triumphantly celebrated a long-awaited claim and said that the sentence will go down in history as “the day when human rights became valid for all.”
In addition to revoking that constitutional protection, the Court issued other rulings that reinforced the guarantees to bear arms, weakened the right to vote, the ability of the federal government to regulate business and combat climate change, or blurred the line between religion and state, rulings that entrenched the new conservative profile of the court, and, for most of the country, the clocks turned back.
In the United States, the Supreme Court was a sacred institution. The final and definitive answer to the most difficult conflicts and the most fundamental questions. The court building, the “Temple of Justice”, an imposing white marble palace built between 1932 and 1935, overlooks Congress from the top of the Mall of Washington, where the three branches of the federal government coexist. The Court marked history with momentous rulings, and was, more than once, the “lighthouse” referred to by Obama. But his latest decisions broke Americans’ confidence in the court – it fell to 25%, a historic low, according to Gallup – and put his legitimacy under scrutiny.
The court ruling on abortion, a 213-page briefmarked a seismic shift in the interpretation of the constitution and the philosophy with which the Court, now with a majority of conservative judges thanks to Donald Trump, twists the course in the lives of Americans.
Five judges voted in favor of revoking the constitutional protection of abortion along with a ruling in favor of a Mississippi law, which prohibited abortion with few exceptions after 15 weeks of gestation, a limit similar to that applied in Argentina . The ruling was based on a legal theory –extreme, according to its critics– called “Originalism”, which looks at the constitution as a static document, and interprets it as it was originally written. It is a major break.
During the last decades, since the middle of the 20th century, the philosophy that prevailed in the Court was “Living Constitutionalism”: the interpretation of the Magna Carta changes, evolves and adapts to changes in society and the values of the country. That view led to a historic expansion of constitutional protection for privacy, abortion, contraceptives, same-sex marriage and interracial relationships. Antonin Scalia, who died in 2016, and Ruth Bader Ginsburg, who died in 2022, were the great modern references of both visions. (Both were also great friends.)
Brett Kavanaugh, one of Trump’s appointees, said the constitution does not give the court “the authority to decide a critically important moral and political question” like abortion. The Court left that authority in the hands of “the representatives elected by the people.” The three progressive justices, Stephen Breyer, Elena Kagan and Sonia Sotomayor, considered, on the contrary, that the protection of abortion is integrated into “the central constitutional concepts of individual liberty and equal rights.”
“Those legal concepts, you could even say, have gone a long way in defining what it means to be an American. Because in this nation, we don’t believe that a government that controls all private elections is compatible with a free people.”
José Miguel Vivanco, an expert lawyer in human rights, said that the Court’s new position puts fundamental rights at risk and criticized “Originalism” by indicating that it is “a valid discussion for the Bible, but not for a legal framework that should guide peaceful coexistence of citizens in the 21st century”.
“This is a symptom, a flagrant evidence of the culture war the United States is in with a conservative onslaught that knows no limits and is willing to force the country to go back to the middle of the previous century, where the United States, which is supposed to be a full democracy with broad rights, goes back to the practices of countries with an institutional structure founded on religion, which imposes theological values on a modern society”, he pointed out.
The president of the Court, John Roberts, tried –unsuccessfully– to weave a consensus between the conservative and progressive wings of the court. An attempt to close the crack. Roberts appealed to the principle of “judicial restraint” and advocated limiting the protection of the “Roe v. Wade”, from 1973, without removing it.
“If no further decision is necessary to resolve a case, then no further decision is necessary,” Roberts appealed, referring to the Mississippi lawsuit.
The latest decisions of the Court uncovered a much deeper political problem: the North American democratic system is going through a crisis of representativeness that corrodes its credibility, its stability and its legitimacy, and leaves the country with enormous difficulty in forging solutions to the most acute problems in the midst of rampant polarization. For the left, the Republicans, now dominated by Trumpism, have twisted the institutional mechanisms to impose an ultra-conservative and minority vision on the rest. The right wing accuses the Democrats of wanting to change the spirit, nature, and pillars of the country with a “radical leftist agenda.” The center dissolves.
The parties, especially the Republican Party, have gone to extremes. A 2020 Harvard University global survey of nearly 2,000 experts comparing the ideology, political positions, and rhetoric of political parties around the world placed the Republican Party alongside the more authoritarian far-right parties. And now the parties are divided territorially: the Republicans rooted their power in the rural areas, more conservative and less populated, and the Democrats, in the urban centers, more populous and progressive. Due to this division, the Republicans have an advantage over the Democrats in two institutional pillars, the Electoral College, which elects the president, and the Senate, where, in addition, any substantial reform must overcome the filibuster, which requires a majority of 60 votes, a virtually insurmountable wall. With Trump, who lost the popular vote, and the Senate, Republicans installed the current majority of six conservative justices on the Court.
“It is definitely a time of crisis”, assessed Steven Levitsky, political scientist and professor at Harvard University, and co-author of the book How democracies die. “We are descending towards a minority order. We are seeing a court willing to pass sentences that has the support of a surprising minority of the population. It is really dangerous. For anyone who believes in democracy, a system that allows a minority to rule a majority is a real problem”, he completed.
Most Americans believe that abortion should be legal under any circumstances, or at least in cases of rape or incest. or when the mother’s health is at risk. About six out of ten Americans, 56% of Catholics, more than 60% of Protestants believe that a woman should be able to access an abortion. Only a majority of evangelicals, a pillar of Trumpism, oppose it, according to the Pew Center.
A majority of Americans want more gun control, six in 10 want to ban assault rifles, according to Gallup, and three in four want to raise the legal age to buy a gun to 21, the minimum age to buy alcohol or marijuana in states where it’s legal. Two-thirds of Americans believe the government should do more to combat climate change. Six out of ten believe that cannabis should be legal. No law has put any of that in writing. The stoppage –gridlockin Washington political parlance – grips Congress.
Vivanco believes that what is at stake “is the crushing of a minority that is not willing to play by the rules of the democratic game” and wants to overwhelm a liberal majority.
“I don’t know how much longer California, New York, Connecticut, Massachusetts are going to agree to be governed by Kentucky. That is what is at stake. It is a war where a rural and nineteenth-century minority is imposing itself on the majority. I don’t know how this tension is going to be resolved, but it is a critical situation”, she affirms.
Levitsky points out two other problems. A majority within the Republican Party, he indicated, does not accept a “multiracial democracy,” and as long as they control the party, any reconciliation will be more difficult. The other: the rejection of the youngest to the system.
“My generation, who grew up in the ’70s, ’80s, ’90s, widely accept our political system as legitimate. That is less and less true for younger generations, who grew up with two elections in sixteen years where the loser wins the presidency, the last war was based on a lie, and a financial crisis where the government bailed out the banks and not the people,” he described. “And what that means in terms of the will to elect a populist, an outsider, or mass protests is impossible to predict,” he added. When a generation loses trust in political institutions and our government, democracy is more vulnerable.”