Is the US Supreme Court too hardline for America?

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington. AP Photo

Religion is one of the most polarising factors dividing US society today. During the presidency of Donald Trump, the evangelical Christian right gained unprecedented power in the Republican Party and finally acquired significant influence over US foreign policy.

A new five-vote, hardline conservative majority on the Supreme Court bench also reflects a religious conservatism that is historically remarkable and profoundly out of sync with the views of most Americans on social issues. The Supreme Court's new term began this month, and it may reveal a huge divergence of values between the public and the highest court in the land.

In coming months, the court and its five-vote religiously inflected majority are set to rule on reproductive freedom, gun control, various religious issues and much more. If these justices give way to their reactionary impulses, it could produce the biggest rift between the public and the judiciary in decades, and exacerbate an already growing crisis of confidence in the court's integrity.

It's not just a question of conservatism or Republican Party affiliation. Chief Justice John Roberts qualifies on both those scores, but he is not really part of the emerging religious majority.

Occasionally, he joins the others but there is every reason to expect that Mr Roberts will increasingly find himself confronting extreme rulings by the other five Republican-appointed justices that cast aside precedent, read the constitution in their own creative and activist manner, and do as much as possible to impose a fundamentalist social vision on the country.

But they do not need him, as the five judges in question – Clarence Thomas, Samuel Alito, Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch – have already demonstrated on more than one occasion. That was especially glaring when this group, in effect, recently allowed a law, which will all but eliminate access to abortion in the state of Texas, to be implemented, rather than stayed, while its strange and probably unconstitutional enforcement mechanisms are litigated.

Chief Justice John Roberts, see here with former president Donald Trump in 2017, is conservative but not in the religious sense. AFP

What's particularly remarkable about the five judges is that their control of the court is the result of decades of intense political labour by evangelical Protestant Christians. Yet, all five of their champions are passionate Catholics (though Mr Gorsuch now attends a Protestant church).

Indeed, this is all the more ironic because Catholics are, for the most part, overshadowed by evangelicals and other Protestants in Republican ranks, and there is a significant attachment to the Democratic Party by many American Catholics, including President Joe Biden, House Speaker Nancy Pelosi and many others.

One of the reasons that there are Catholic figures at the spear of right-wing judicial politics is that conservative Catholic educational and legal institutions have taught, nurtured and promoted a formidable cadre of activist judges and lawyers in a much more focused way than their evangelical Protestant counterparts have.

The two groups join most passionately over the issue of banning abortion, which is very likely to be significantly, for the first time since the early 1970s, advanced by this bloc in coming months.

This is the most quintessentially religious issue in US politics. Most Americans support access to abortion within limits, but it is an article of faith among many religious conservatives that virtually all abortion at any stage is unacceptable because, they insist, human life begins at conception.

Pro-life protesters stand near the gate of the Texas state capitol in Austin in May. AFP

In the early 1970s, one of the largest evangelical denominations, the Southern Baptists, were generally supportive of abortion rights. But when the evangelicals became politically active around 1979, the "pro-life" movement was quickly identified as a powerful mobilising force, and categorical fundamentalist opposition to abortion became an unshakable tenet of its doctrines and agenda.

Overturning Roe v Wade, the Supreme Court case that defined current laws on abortion in the US, which is likely in some form in coming months, will represent the ultimate triumph of evangelical politics. Yet, because Protestant fundamentalists lack a large pool of lawyers, judges and academics on which to draw, they have effectively been forced to rely on a group of like-minded Catholic activists.

Recent polls demonstrate that public trust in the Supreme Court has become remarkably low.

Part of that is rooted in the decision that effectively decided the outcome of the deadlocked 2000 presidential election in favour of George W Bush, a Republican, against Al Gore, his Democratic opponent. That the court split precisely along party lines, and both sides appeared to adopt positions contrary to their normal stances, spurred tremendous, and entirely justified, cynicism about the idea that the judicial branch of the US government is less political than the other two branches.

The US Supreme Court is seen at sunset on Capitol Hill last week. AFP

Now a conservative religious majority seems set to begin restructuring core aspects of American society, and undoing long-standing rights and practices according to their own hardcore doctrines. It is reasonable to expect the court's reputation to nosedive, except among a delighted minority that shares those views.

Several justices have recently insisted that they do not take ideology or party affiliation into consideration. Yet, most Americans know they typically do. Worse, it's no longer just about party or ideology, but essentially about religious zealotry.

No one sensible is going to be persuaded that these judges' "judicial philosophy" just so happens to produce results that conveniently coincide with deep-seated religious beliefs and that delight their political patrons. What's the difference, anyway?

If these justices don't exercise considerable, and improbable, restraint, eventually the American majority may decide to use their constitutional prerogatives to restructure or otherwise constrain the court.

Mr Roberts may advocate restraint. But, thus far, it doesn't seem the other five Republican appointees have much regard for what their supporters appear to view as his insufficiently pious outlook.