US political realities are being dominated by the legal system and the judiciary to a virtually unprecedented degree. An activist, ultra-conservative and highly assertive Supreme Court is setting itself up as the premier national decision-making body. State Supreme Courts are also asserting extraordinary powers. And high-profile criminal cases may, more than anything else, define the next presidential election.
The Supreme Court's reactionary Catholic majority is simultaneously pleasing and roiling both friends and foes. In particular, the 2022 Dobbs v Jackson Women's Health Organisation ruling that stripped women of a 50-year-old constitutional right to reproductive choice early in a pregnancy is having a devastating effect on women seeking health care in much of the country. But it's also proving even more of a political bombshell than many liberals hoped and some conservatives feared.
No one was sure if the initial outpouring of anger from women's rights groups and others would have a sustained long-term political impact. After all, other issues could overtake reproductive rights for attention, or the politics of abortion access could find its own equilibrium in various states. But the issue has remained a top national political force.
It's clear that the Supreme Court ruling is more profoundly at odds with majority American public opinion than initially understood, not only in liberal or moderate states, but in some highly conservative ones. That certainly helped the Democrats perform far better in the 2022 midterms than was widely expected. It seems likely to be a major asset to Democratic candidates in general, and President Joe Biden's re-election bid in particular, in 2024.
Every time voters have been able to make their voices heard directly through state referenda, abortion access has won decisively. Nonetheless, conservative courts are working to maintain these restrictions despite the popular will. This is likely to maintain and exacerbate the sense of outrage.
In highly conservative Kentucky, voters overwhelmingly sided with abortion access. Nonetheless, the state Supreme Court, following the national court's lead, ruled that two highly restrictive 2019 state laws, one banning nearly all abortions and the other banning all beyond six weeks of pregnancy, should remain in place for now, despite the will of most voters.
The right-wing state legislature in Ohio – which used to be reliably liberal but has become distinctly conservative in recent years – has taken note of this trend. It sought to prevent voters from amending the state constitution to protect reproductive rights in a coming November ballot initiative.
Even though Ohio conservatives have been campaigning against August referenda as bad for democracy because they typically produce low voter turnout in the lazy summer months, that's exactly when they introduced a ballot initiative to require many more signatures to introduce a measure and a 60 per cent supermajority, rather than the existing simple majority, to amend the state constitution.
They were obviously counting on the very qualities about an August vote against which they had complained so bitterly. And even though the referendum issue was only indirectly about reproductive rights, turnout was unusually large and the anti-choice measure was trounced by a massive 14 points. Given voting patterns from the past two elections, it's obvious that plenty of Republicans and conservative voters joined liberals in rejecting the cynical ploy.
Ohio's anti-choice laws are so strict that a pregnant 10-year-old rape victim had to flee to nearby Indiana to access health care that saved her from likely dire physical and personal consequences of giving birth at her age. Such cases are happening throughout the country, and the backlash is proving broad, deep and long-lasting. So, the Supreme Court has delivered individual women and the Republican Party massive, albeit very different, crises at the national level and in many states.
The Supreme Court itself is increasingly bedevilled by unprecedented corruption accusations, particularly regarding the longest-serving justice, Clarence Thomas. Hardly a week goes by without new revelations of gifts and benefits he has received from numerous wealthy "friends,” including underwriting his motorhome, purchasing and refurbishing his mother's home, paying his ward’s tuition and lavish vacations – including 38 trips abroad, 34 private jet or helicopter rides, numerous yacht voyages, resort vacations and exclusive club memberships – among many others.
In November 2022, I wrote in these pages that the Supreme Court has become “the most corrupt, corrupted and corrupting” major national institution. The case for that has grown significantly stronger since then. A reasonable person would surely see this as public office being used for private gain.
From this “exalted” level of constitutional jurisprudence to more down and dirty criminal prosecutions, both sides in the likely rematch between Mr Biden and his predecessor, Donald Trump, are being haunted by criminal prosecutions.
An investigation of Mr Biden's son, Hunter, begun during Mr Trump's presidency over alleged tax and gun offences was continued by the Biden administration under the same federal prosecutor, David Weiss, to avoid accusations of favouritism.
A plea deal that probably would have spared him prison time was rejected by a judge and is now being renegotiated, although the charges might go to trial. Mr Weiss has been elevated to special counsel status, providing him additional independence. For President Biden, the danger is a constant drip-drip of news about his son's legal travails – dovetailing with evidence-free Republican accusations that the two Bidens partnered in corruption schemes – could harm his re-election prospects.
It could even help offset the tsunami of criminal trials facing his likely opponent, Mr Trump. Though the charges against the younger Mr Biden are trivial in comparison to the over 100 already facing Mr Trump, much of the public may assume a false equivalence. Mr Trump has now been criminally indicted for a fourth time over an alleged plot to overturn the 2020 election results in Georgia. The prosecutor has introduced a sprawling racketeering case involving 18 defendants, the opposite approach to that of special counsel Jack Smith, who has charged Mr Trump alone to promote speed and simplicity.
Either way, unless Hunter Biden secures a stable plea agreement with his father's Justice Department, his trial could attenuate public dismay with Mr Trump.
With the corruption-contaminated US Supreme Court and state-level equivalents deeply at odds with public sentiments, and criminal trials bedevilling the likely Republican nominee and, possibly, the son of his Democratic opponent, US courts find themselves inappropriately at the centre of the national political maelstrom. That's unhealthy, alarming and bad for almost everyone.