The leak of the United States Supreme Court’s draft majority judgment in Dobbs v Jackson Women’s Health Organisation (the final ruling is expected towards the end of June) ignited a firestorm of controversy across the United States. 

Many women’s organisations – and indeed many women in their individual capacities – were outraged at the likelihood that the Supreme Court would overturn the precedent-setting 50-year-old judgment in Roe v Wade (decided in 1973), where the United States Supreme Court had interpreted the constitutional right to privacy to embrace a woman’s right to terminate her pregnancy. 

The sentiment expressed by many organisations on behalf of women across the country was that women should enjoy the right to determine their own bodily integrity, including whether they elect to terminate a pregnancy. 

Clearly, there is not complete consensus on this issue even among women in the United States, and this is undoubtedly a divisive issue. 

However, what one can say with some degree of certainty is that a large proportion of women in the United States believe that the constitutional right to privacy embraces their freedom of choice when it comes to electing to terminate a pregnancy within certain constraints. 

It should be pointed out that the US Constitution does not contain any explicit right to an abortion, nor for that matter does it have an explicit right to privacy. 

The right to privacy was recognised as a consequence of a number of decisions of the Supreme Court, starting in the 1920s. In other words, the right came about as a consequence of the court’s interpretation of various amendments, including the 14th Amendment’s liberty clause.

What is clear is that many rights that are recognised today were not contained in the original text of the American Constitution, but have been recognised through a process of judicial interpretation which seeks to reflect society’s views of constitutional values at a given point in time. 

The point is that, contrary to the views of so-called Originalists, constitutions are living, breathing documents which seek to give expression to constitutional norms and values at the time when cases are adjudicated. 

The controversy surrounding the leaked draft judgment in the Dobbs case is not unexpected. 

Not only is the topic of abortion a highly contentious and divisive issue in the US and more broadly, but equally there has been significant debate about the nature of recent appointments to the Supreme Court and the extent to which these appointments are motivated by ideological and political considerations. 

In this regard, the recent appointments of Justices Brett Kavanaugh and Amy Coney Barrett in particular have proved contentious because they were widely perceived by many commentators as an attempt by former president Donald Trump to populate the court with more conservative-leaning justices and thereby influence the outcome of pivotal cases such as the one in question. 

These concerns have not proved unfounded as it is debatable whether the draft majority judgment in its current form would have come about absent these appointments. 

As a result, question marks have emerged over what some perceive to be the increasing politicisation of judicial appointments where politicians actively seek to indirectly influence the outcome of seminal decisions by appointing individuals to the apex courts who they perceive to be sympathetic to their point of view. 

Admittedly, this is not a new issue, and one that has been spoken about for some time, but the threat which it poses to the sanctity of these institutions is perhaps one that is becoming more apparent. 

Clearly, a serious issue to consider is if the Supreme Court is increasingly adopting a more conservative stance in the manner in which it decides pivotal constitutional cases, and if it is willing to overturn a seminal decision like Roe v Wade, what other fundamental rights – which don’t have explicit recognition in the original constitutional text – could be next to be reconsidered?

The prospect of this is sobering and suggests that one should never take for granted the fact that courts, even apex courts like the US Supreme Court, will necessarily uphold what have become viewed as being fundamental constitutional rights premised on decisions previously taken by the court.  

I would venture to suggest that there is one further dimension which needs to be considered in this regard, apart from the risk that courts such as the US Supreme Court start shifting their approach to the interpretation of key constitutional principles as a result of a change in membership of the court that may be driven by ideological considerations. 

The issue is that these courts, sometimes loaded with gifted legal intellectuals of great distinction, risk becoming detached from the experiences of ordinary citizens. 

In other words, in some instances some members of the court adopt an approach which is either in an intellectual vacuum that pays little regard to the importance of how fundamental constitutional rights make a difference in everyday settings, or they choose to adopt what they believe to be a “pragmatic” approach in determining significant constitutional cases, which also ultimately does not pay proper regard to the nature of the rights in question.

Much of the debate in some of these apex courts is caught up in legal theory and highly convoluted exercises of legal reasoning. While some might say that the very point of law is to engage in these legal debates (I do not disagree with this proposition), what I think is relevant is that the process of highly technical and refined legal debates can sometimes obscure the nature of the rights in question. 

Perhaps the nub of this issue is expressed best in the title of a seminal book by another leading jurisprudential author Ronald Dworkin, Taking Rights Seriously. 

Decisions by courts like the US Supreme Court have fundamental and far-reaching implications for ordinary individuals, particularly when it comes to crucial issues that affect the public interest. 

If courts start behaving like politicians and giving expression either to their own particular ideological perspectives and reversing 50-year-old precedents that have afforded individuals specific constitutional rights, or making decisions which they consider “pragmatic” in the circumstances, then there is a very real risk of accepted fundamental constitutional rights being undermined.

In short, one of the primary functions of apex courts like the US Supreme Court is to ensure that fundamental rights are adhered to and that governments and other third parties do not infringe these rights, and that there is predictability in decision-making. 

Ultimately, a key role of the superior courts is to make sure that bedrock constitutional rights that have been established over time, like the right to privacy and rights which flow from it, are not undermined and that ordinary citizens can count on these courts to protect their rights in circumstances where nobody else will. 

Courts like the US Supreme Court are critical institutions and vital to the future functioning of any democratic society. These institutions deserve our respect, and we need to preserve the sanctity of these bodies. 

However, the irony is that perhaps the greatest danger to these institutions in some respects lies within. 

Once people form the view that the justices who serve on these courts are more beholden to their own ideological perspectives, or their own particular perspective of what constitutes a pragmatic outcome, rather than upholding constitutional rights and principles, they will forfeit the support which underpins the power exercised by unelected judges. DM