Many breathed a sigh of relief when Joe Biden became president nearly eighteen months ago. After four years of Donald Trump, they looked forward to a restoration of sanity. But any period of calm was bound to be short-lived. For the madness in American politics never resulted from the actions of one man. Trumpism predated Trump and will outlast him. And, as another turbulent week in American politics demonstrates, the radicalised American right will seize power by any means necessary.
For decades, conservatives advanced their agenda by packing the courts. The Supreme Court is now far to the right. As expected, it overturned the 1973 Roe v Wade decision last week paving the way for the outlawing of abortion in most American states and perhaps eventually a national ban. How the court made that decision sheds further light on the judicial right’s will to power.
In the past, the Supreme Court typically decided its most consequential rulings with clear majorities and an eye on public opinion. The 1954 Brown v Board of Education decision that declared racially segregated schools unconstitutional was unanimous. Roe was decided by a 7-2 margin. But it was overturned by a bare majority of one – and in spite of the fact that most Americans opposed overturning it. The court will not stop here. In his concurring opinion, Justice Clarence Thomas hinted at repeal of other long-established constitutional rights, including those to contraception and to gay marriage.
As chief justice John Roberts argued in his opinion, overturning Roe was entirely unnecessary to decide the case at hand, which concerned a Mississippi law outlawing abortion after the fifteenth week of pregnancy. Roberts voted to uphold the Mississippi law, but rejected the repeal of Roe as an “a serious jolt to the legal system” with predictably “unsettling” results.
Roberts is a deeply conservative justice who paved the way for Trumpism in earlier decisions that allowed donors to make unlimited donations to political campaigns and enabled a wave of state voter-suppression laws. It is terrifying that the court has now moved to Roberts’s right. It’s also telling that he represents a dying breed of conservative, one with a modicum of caution and a shred of respect for legal precedent and public opinion.
The Supreme Court aslo voted 6-3 to overturn a New York gun control law last week. As a result, Americans will no longer need to demonstrate why they need a licence to carry a concealed firearm. There was hardly any consistent legal logic at work between the decision overturning Roe and this one, which is an obvious case of judicial activism overruling democratic legislation. If the Constitution outlines no clear right to an abortion, neither does it contain one that all citizens can carry guns. (The Second Amendment specifies a “right to bear arms” but only in the context of maintaining state militias with muskets – not assault rifles.) And, needless to say, a ruling certain to result in more lethal gun violence is hardly “pro-life”.
Of course, the most extreme example of the right’s power grab remains the insurrection at the US Capitol on January 6th, 2021. Yet more astonishing details of that event came to light this week. As further congressional hearings demonstrated, Trump knew full well that there were no legitimate grounds to overturn the 2020 election result.
Insurrection
He was also aware of the potential for violence at the US Capitol. Cassidy Hutchinson, a top aide to Trump’s chief of staff, testified that Trump knew that many supporters he encouraged to march to the Capitol carried firearms. In fact, he ordered the Secret Service to remove metal detectors so that his gun-toting supporters could attend the rally that preceded the assault. Most stunningly, Hutchinson claimed that Trump wanted to join the insurrection. An irate Trump apparently lunged at his Secret Service driver, demanding to be taken to the Capitol despite being told it was unsafe.
There are, of course, differences between the judicial right and the January 6th mob. But they share a perverse love of guns, a predilection for authoritarianism, and a willingness to override basic human rights no matter how popularly accepted. They are tightly allied within today’s Republican Party, with some overlap between the two groups. The January 6th committee wants to question Ginni Thomas, the spouse of Supreme Court justice Clarence Thomas, after uncovering email evidence that she urged the Trump White House to fight to overturn the 2020 election.
Though the present danger the American right poses cannot be overestimated, its radicalisation may ultimately provoke a successful backlash. Given the unpopularity of its positions and methods, a democratic majority can be built to thwart its aims. But that is a long-term project. In the meantime, the determined and well-organised radical right will count more victories. The madness in American politics will persist and maybe even intensify.
Daniel Geary is Mark Pigott professor of American History at TCD.