Judiciary Vs Executive In US: Why Joe Biden Administration Has Tough Times Ahead

In the United States, the tussle between the Executive and the Judiciary is not just the usual slapping down of overreach by either side but is based on conservative or liberal ideas that the country’s two main political parties—the Republicans and Democrats—champion. There are major differences between conservatives and liberals but hot-button issues are racial justice, gender equality, including LGBT rights, gun laws and the environment.

The appointment of justices has much to do with political loyalties on these issues. Nine justices make up the Supreme Court Bench in the US. Judges are appointed for life and hand-picked by the serving president. The nomination is later confirmed by a simple majority in the Senate. Vacancies are, therefore, few and far between. Many presidents complete their tenure without making a single appointment. Unless they are lucky, like Donald Trump, who nominated three Supreme Court justices and was able to get a Supreme Court bench that is predominantly conservative and upholds Republican values.

Abortion Law

The result was evident this summer, with the Supreme Court’s appalling decision to overturn the earlier progressive decision on abortion, Roe v Wade. In 1973, the court allowed women the constitutional right to terminate an unwanted pregnancy. This was welcomed as a major step in enabling women to decide whether or not they were in a position to have a child and to terminate it should they choose to do so.

The Supreme Court decision has shifted the legal battle on abortion to the states, with many Republican-ruled states prohibiting termination, while some Democratic states went of their way to safeguard the hard-won right of a woman’s control over her own body. The UN also stepped in, with human rights chief Michelle Bachelet calling the overturn a “huge blow to women’s human rights and gender equality”.

Women across US cities protested while the Christian Right also held rallies to welcome the decision. According to surveys conducted at the time, over 62 per cent of women completely opposed the end of the federal right to abortion, 47 per cent strongly disapproved and 21 per cent of women welcomed the judgment.  One reason for the Democratic party’s better-than-expected showing in November’s mid-term elections was because of the large turnout of young and first-time voters who opposed the Supreme Court decision.

Now that the Supreme Court has overturned abortion rights, there is talk that other issues dear to the conservatives will also be pushed,
including transgender rights and gay marriages, seen by Republican Christians as abhorrent as they believe that it goes against the natural order created by God. Same-sex marriage was legalised in some states in the US in 2015. To pre-empt any move to scrap this, President Joe Biden signed the gay marriage legislation into national law this month. “This law and the love it defends strike a blow against hate in all its forms,” Biden said afterward, “and that’s why this law matters to every single American.”

US Gun Laws and the Second Amendment to the Constitution

From time to time, shooting deaths in US public places have reviled and shocked the world. How a mature democracy like the US is still in many senses the Wild West of comic books and spaghetti westerns is a puzzle to most outsiders. Gun laws remain lax and killings continue. In May this year, 19 children between seven and 10 years, as well as two teachers, were shot dead by a gunman in Uvalde, Texas. This is not the first time that school children were attacked.

In Sandy Hook elementary school in Connecticut, a lone gunman killed 28 people. He began by shooting his mother at home, before proceeding to the school with four guns in his possession. There, besides teachers, he killed 20 kids, who are six and seven year old, before turning the gun on himself. The 2015 shooting at the Charleston church of nine churchgoers at a Bible study class again shook the US.  These events are different from gunmen randomly taking aim at shopping centres, nightclubs and parking lots. The figures are alarming. Till November, there were 611 incidents of mass shooting this year, while the highest was 690 in 2021, and 610 in 2020 (from Gun Violence Archive which tracks gun violence).

According to a 2018 report of Small Arms Survey, which records the number of guns per 100 people in a country, the US leads with 120.5 guns, followed by Yemen (where there is a civil war)  at 52.8 guns per 100 people. The easy availability of guns is one reason for violence in the US. So why are gun laws not much more stringent?

This has to do with the Second Amendment of the US Constitution, which lays down that a “well-regulated militia, being necessary to the
security of a free state, the right of the people to keep and bear arms, shall not be infringed.’’ Perhaps, this was necessary in the old days and during the US Civil war, but today is this still relevant? Conservative judges believe it to be a fundamental right of the individual that cannot be infringed by the executive through legislation.

The Second Amendment was adopted in 1791 along with the rest of the Bill of Rights. But it first came into play in 1871, when 100 African-Americans were killed by white supremacists in Louisiana. They were charged not with murder but with violating the constitutional rights of the murdered men. The Second Amendment helped the murderers escape as they said they had the right to protect themselves.

But this amendment is serially misused. Republicans support the second amendment and the powerful gun lobby, represented by the National Rifle Association, spends billions of dollars in funding Republican candidates who speak for them in the US Congress. The NRA also spends on getting supporters to file cases for the right to carry firearms for self-protection and bring up the constitutional guarantees granted in the Second Amendment.

The US Supreme Court sometimes appears willfully blind to the gun violence around the country. In June this year, the nine-member bench of the apex court gave a 6-3 verdict deeming a New York law requiring a special reason for individuals to carry a gun in public unconstitutional. This decision came right after the Texas shooting; a similar shooting incident in a food store in Buffalo in New York state had also just occurred.

This happened even as the US Congress was trying to bring in tougher gun control laws, following the increase in gun violence. President Joe Biden said after the verdict, “This ruling contradicts both common sense and the Constitution, and should deeply trouble us all.” He added, after the shootings in Buffalo and Uvalde, “We must do more as a society—not less—to protect our fellow Americans.”

Wayne LaPierre, of the NRA, especially welcomed the decision calling it a “win for good men and women all across America”. He said, “The right to self-defense and to defend your family and loved ones should not end at your home.”

Environment and the US Supreme Court

It is well known that Republicans do not take climate change seriously. Trump called it a hoax spread by China to take away US jobs. Well, it is not just Trump but conservative justices come out with rulings against the Biden Adminis­tration’s plan to limit greenhouse gas emissions. In July this year, the Supreme Court restricted the federal government’s bid to regulate emissions from existing gas and coal electricity plants. In a ruling, the apex court bench put limits on control of the Environment Protection Agency (EPA) over plants operating in states and questioned its powers to set regulations on emissions. This was a body blow to the Biden Administration’s bid to clean up the environment and reduce emissions from these polluting plants. In a six-three verdict, the Conservative judges vetoed the government’s efforts. The EPA was given powers under the Clean Air Act to look into these matters. This effort was seen by the Conservative judges as an overreach by the Biden Administration, interfering in issues that should be left to states. Conservatives believe in scuttling Washington’s bid to extend its powers.

(This appeared in the print edition as "The Battlelines Are Drawn")