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Why Trump's Supreme Court Nomination Is More Important Than We Realise

01/02/2017 16:33
Carlos Barria / Reuters

The US Supreme Court holds an often-silent superiority within the American federal system. Most people, especially non-Americans, don't know much about it, except that it is the highest court in the US. But it holds an appropriately termed "supreme" power when it comes to highly disputed issues such as reproductive rights, gun laws and freedom of speech. Trump has just announced a nominee to replace a ninth seat on the Supreme Court bench following the death of former Justice Antonin Scalia in February 2016. This matters because the Court has always been an incredibly controversial branch of government. Many will see this in the news and think "oh it's just another of Trump's suggestions", or "oh he's just a judge", but the implications of this one decision will be monumental for us all.

The Supreme Court is positioned at the head of the judicial system and interprets the Constitution to have the final say on legal disputes. The Constitution was written in 1787 and established America's fundamental laws and through a number of different "articles", guarantees certain rights for citizens. In theory, the Court is meant to be independent and politically neutral, but this is far from the case. Justice Roberts himself once remarked: "justices should be like umpires at a baseball game, whose job it is calling balls and strikes and not to pitch or bat". There lies a political paradox between the assumed neutrality of the Court and its highly political reality. Nine justices are appointed to the bench for a lifelong tenancy, but each and every justice in history has held a political leaning of sorts, predominantly of liberalism or conservatism.

To explain in simple terms: liberals favour change and progression and conservatives like to preserve traditional arrangements. Sound familiar? That's because Republicans are largely conservative when it comes to reading the Constitution - one of the most notable examples of this is their fierce defence of the second amendment: the right to bear arms. So from a general perspective, aligning with a liberal or conservative belief can be linked to ones political orientation. The significance of this is that the court exercises the power of judicial review; an ability to overturn legislative acts on the grounds of conflict with the Constitution. But different judges interpret it differently. Broadly speaking, liberal judges tend to be "judicial activists" (believing the Constitution should not be interpreted word-for-word but through broader understanding) and conservatives are advocates of "judicial restraint" (using a close and literal interpretation).

As the makeup of the Court has changed over time, certain areas of legislation have seen massive fluctuations depending on how ideologically balanced the Court is at that time. The current Court (known as the Roberts court due to Chief Justice Roberts) was largely considered politically balanced, with four liberal leaning justices, four more conservative judges and one swing-voter (although comparatively he voted more conservatively). The passing of one of the largest advocates of judicial restraint, the conservative Antonin Scalia, has left a seat that poses as a great opportunity to the Democrats. It is this that makes Trumps nominee such a crucial decision, as he alone could act as a tipping point for mass political change in the future. Take abortion legislation as an example, whose fluctuating legislative history illustrates the importance of who makes up the Court.

• In the 1973 case Roe v. Wade, the liberal leaning Burger Court made a landmark decision to overturn all state bans on abortion, declaring abortions legal in America.
• With the transfer of power to Chief Justice William Rehnquist and the appointment of right-wing Justice Antonin Scalia in 1986, a case in 1989 saw a step backwards for reproductive rights. In Webster v. Reproductive Health Services the court upheld Missouri's ban on the use of public services to perform abortions. During the discussion Justice Scalia even made a public argument that Roe v. Wade should be overturned.
• In 2007 Gonzalez v. Carhart the court ruled to uphold a federal law known as the Partial Abortion Act (introduced by Bush in 2003), which prohibits specific abortion procedures. The decision was made by a majority of the five most conservative justices on the court.
• Since Scalia's death the absence of another conservative to block progressive abortion measures was illustrated through the 2016 case Whole Woman's Health v. Hellerstedt. This declared that Texas couldn't place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion.

These are just a few examples of how the very foundations of the Supreme Court can affect the lives of citizens across America. The same variation can be seen when looking at the history of racial equality, gun rights, freedom of speech and many more. But abortion is an issue now largely associated with Trump due to his recent signing of a ban on federal money going to international groups that perform or provide information on abortions. With his previous declarations of personal distaste towards abortion rights, his nominee could potentially see a reversal of the very significant progress made in 2016.

Trumps proposal of Judge Neil M. Gorsuch is a political statement: the suggestion of a conservative to fill the shoes of one of the most right-wing Supreme Court justices the US has ever seen. Well known for his largely conservative rulings, Gorsuch has previously voted in favour of employers who invoked religious objections for refusing to provide some forms of contraception coverage to their female workers, as well as criticising liberals for turning to the courts rather than the legislature to achieve policy goals. Exhibiting the views of an advocate of judicial restraint, on Tuesday Gorsuch said: "it is the role of judges to apply, not alter, the work of the people's representatives", acting as an indication of his ideological leaning.

If he were appointed, Judge Gorsuch would restore the 5-to-4 split between conservatives and liberals on the court and see a return of the swing vote to Justice Kennedy, whose rulings have fallen on both sides of the political spectrum. Not only this, but at 49 he is the youngest nominee to the court has seen in over 20 years meaning he would likely be on the bench for a comparatively longer amount of time to the other justices and have a supreme influence on landmark decisions in the future.

Politicians in the US acknowledge the political nature of the Court and this nomination has unsurprisingly angered Democrats who became embroiled in a bitter fight with Republicans last year, over their refusal to even consider former President Obamas nomination of Judge Merrick B. Garland. Liberal groups and leading Democrats have declared that they will do all that they can to prevent Trumps nominee from taking a seat on one of the most important judicial benches in the world.

Having always found the Supreme Court to be the most fascinating branch of the American political system, this development is of real interest to me, but I fear most people do not understand the significance of this nomination. The US political structure is complex and perplexing at best and unless you take the time to research its inner-workings, it is hard to understand why changes like this matter. I feel politicians take for granted that the youth of today have a full comprehension of the political system and think it's important to spell out the implications of every decision made that will have a direct impact on the lives of the people they serve. So before you switch TV channels when you see this story on the news, maybe stop for a second and consider what it could mean in the long run.

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