Roe vs Wade - judicial activism, or back to normality?

There has been a firestorm in the US over a leaked memo from the Supreme Court which appears to suggest that SCOTUS may well issue a decision that will effectively overturn Roe vs Wade, and has since been confirmed as genuine. Roe vs Wade, the case from 1973, means that all states must allow abortion in some form. This case opens the door for states to pass draconian legislation, and in the case of Michigan would mean that they would revert to a 1931 law that makes no exception for rape, incest, or medical emergencies. Other laws, such as Texas's 2021 'Heartbeat Law', which banned abortion after 6 weeks and criminalised those who assist women seeking terminations.

The Supreme Court of the United States.

The rationale behind Alito's decision in the case is that abortion is not mentioned in the constitution. This fits in with the dominant thread of conservative justices in recent times of strict constructionism, or textualism. This judicial ideology, simply put, means that decisions should be based on the specific text of the constitution, as it is written. For example, Antonin Scalia said that although he was personally against flag burning as a form of protest, and would have allowed it as a legislator, it also should be allowed under the constitution due to the clear wording of the 1st Amendment, where it would be considered protected speech.

So, abortion, the right to which is based on a small aspect of the 14th Amendment (that of the right to privacy), is now under threat in the biggest of all Western democracies. The removal of the precedent set in Roe, which has been chipped away at for years, means that the principle of states' rights is being pushed by conservative justices and legislators. This is certainly consistent, and is one of the key tenets of modern Republican thought. However, it is also true to say that there are a range of issues where conservatives have been less keen on states' rights, such as in cases of marijuana legalisation or assisted dying (euthanasia). Many are now asking, given that other rights such as same sex marriage and aspects of racial equality such as integrated schooling are based on the 14th Amendment, could Supreme Court action on these be forthcoming?

Sign held by a protester. Obergefell refers to Obergefell vs Hodges, and Lawrence refers to Lawrence vs Texas, which struct down restrictions on male homosexual sexual relations.

In fact, John Hart Ely, the constitutional scholar, went so far as to say that strict constructionism wasn't really a philosphy of law, but was really about reaching popular political decisions for a specific party. A clear example of this is the famous Supreme Court case, FEC vs Citizens United, struck down decades of electoral law, in favour of virtually uninhibited donations in politics. Therefore, far from preserving the text of the constitution, and applying it in a limited fashion, such justices are truly conservative activists.

 The justices who look set to strike down Roe have also been appointed in a hyperpartisan fashion. Three were appointed by Trump, who won with 3 million fewer votes, and two by Bush, whose first win was also won with a minority of the popular vote. Additionally, Senate Republicans have certainly pushed the approval process to its very limit, in the form of holding up the approval of Merrick Garland in 2016, and pushing through Amy Coney Barratt in 2020. Now, this long game of Republican legislators looks set to pay off in a way that is devastating for women in America and around the world.

Comparing the protection of rights in the US and UK

 I intend to write something good about this at SOME POINT, but Helen Lewis, who writes for the Atlantic and others, has done my job for me.

In this piece she compares the protections in the UK Equalities Act 2010 with the judicial protections in the US, most obviously Roe vs Wade, Brown vs Board and Obergefell vs Hodges. One of the key passages is "this is what you get when you can’t pass new primary legislation: endless judicial chicanery and sleight of hand. Across the US, there is majority support for gay marriage, for abortion rights, for laws to prohibit firing people for being gay. But under the current system, these rights are fragile, and will always be fragile—the whim of a handful of lifetime appointees."

So, the US political system and the level of gridlock, hyperpartisanship, and systems such as the filibuster, mean that judges are handed enormous power. And the stakes being so high, with this huge power being handed to, in effect, a minority of the US population, means that this will continue to be a huge battleground.

You can, and should, read the whole piece here. 

Representative democracy vs direct democracy

 One of the topics listed for AQA's UK Politics paper this year is the vaguely titled 'nature of democracy' section. A glance at the mammoth UK/US textbook reveals that this is referring to the section on representative democracy and direct democracy, what constitutes them, how effective they are, and whether the UK would benefit from a move towards direct democracy.

A thing that is worth challenging, although not technically a mistake, comes about when students consider how effectively representative democracy actually provides representation to its citizens. Most students seem to look at this *only* through the lens of descriptive representation; that is to say, whether parliament looks like the electorate. A good place to look at this would be parliament's own numbers, which state that there are 220 women MPs  out of 650, so just over a third (about half for Labour), with about 10% of MPs being from an ethnic minority vs 14% of the population. HOWEVER, this is not the main point of representation! What this means is how good are UK MPs at representing their constituents? UK citizens enjoy remarkable access to their MPs compared to a lot of countries, and politicians routinely travel back to their constituencies on Friday to deal with constituency issues. Political betting (quite a long time ago) pointed out that whilst people on the whole disliked MPs, they often liked their MP, in this article.

- As an aside the UK has JUST changed voter ID laws, making it the case that approximately 1.1 million people will lose the right to vote. Also, the Electoral Commission has lost its independence, putting it under direct government control. This is very relevant!

Here are some points about representative democracy that are worth remembering:

- Edmund Burke is probably the key person an examiner wants you to know, as the proponent of the trustee model of representation (as opposed to the delegate model). He said that " his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living." This means that an MP should make their own judgement on your behalf - NOT just doing what you think.

- You should look at how effectively our system encourages participation. What are recent general election turnouts? What are recent figures regarding political party membership?

- What is the level of education in our political system? How well informed are voters about political issues? Do they understand how UK democracy works?

- What is the level of accountability of our politicians? Between our (up to 5-yearly) elections MPs have very limited levels of accountability, and of course the overwhelming majority of them represent safe seats that means the chances of them losing are virtually nil.

- Other factors you might want to consider are legitimacy, civil rights, and the rule of law. More information about these can be found on page 146 of the excellent AQA Politics textbook (Lemiuex, Hammal, Fairclough and Bennett).

So would using a system with greater direct democracy improve on any of these areas. To know this it is important to know what we already have that includes this, and what else it could include.

Firstly, we should certainly know the results and details of referendums that have occurred in the UK. Some of these seem to demonstrate very positively about direct democracy, such as the high participation levels achieved in the EU referendum, as well as the 84% turnout in the Scottish Independence referendum. However, there are many examples of issues with referendums. This includes the 34% turnout of the London mayoral referendum, and 42% for the Alternative Vote referendum. Also, the Welsh Assembly referendum only passed with 50.3% of the vote, with a turnout of 50.2% - hardly a ringing endorsement, with only just over a quarter of the country voting for it. 

Another aside - Farage and others are now pushing for a referendum of 'net zero' (the push for zero net carbon emissions). Hopefully this never happens.

It should be remembered that the government controls what we have referendums on and when we have them. As such, this is an informal add-on to our system, rather than a formal system such as in Switzerland, where they have frequent referendums, which can be gained via citizen petitions. 

Voter information send out in Swiss referendums.

Other forms of direct democracy in the UK include:

- e-petitions, such as the one that led to a government enquiry into the Hillsborough disaster. This is an example of a genuine form of direct democracy that has been bolted on to the UK's system in a formal way. It should be noted that the government does, however, have no requirement to hold a debate on issues that gain sufficient signatures, such as the petition to cancel Brexit.

- Recall petitions. In certain circumstances, such as where an MP has received a criminal conviction, a petition that gets over 10% of votes in a given period can result in a recall election. Labour MP Fiona Onasanya and Conservative Christopher Davies have both been ousted from their seats in this manner.

- We now have directly elected mayors in a large number of locations, such as Liverpool where Labour Joe Anderson was succeeded by Jo Anderson. However, in Bristol they have voted to get rid of their directly elected mayor!

- Police and Crime Commissioners. These were supposed to give some local control over policing. I suppose it has, but when the turnout in 2018 was 26% it can hardly be said to have animated anyone.

- in the US they have some other things, like ballot initiatives which are local or state referendums on new laws. Some of them have led to major changes on issues like drugs or euthanasia. Anyone can get something on the ballot with enough signatures. They also have elections for all sorts of things, like school board members, giving voters direct control over all sorts of areas (which isn't always a good thing). Some states also have their own system of referendums, which effectively enables them to veto laws.

We seem to be moving towards some piecemeal mixture of direct and representative democracy. However, the prospects of citizen determined referendums are unlikely, or at least a long way off.

Hopefully whatever comes up is in some part answered by this post!

Are you better off? The impact of personal finances on elections

This Thursday sees a raft of local elections in the UK. As I have explained already, there are a lot of factors at play in these, with only *some* of them being local issues themselves. For a start, sometimes it has more to do with which specific areas are up for grabs (i.e. if it is in an area you did well in 4 years previously, it could be that you make limited gains, and the headlines become about a lack of success for your party). The saying is that all politics is local, and that is partially true, but to an extent this locality may be more about individual experiences, as I will go on to explain.

Recent polling has found the Conservatives behind in every area of policy and Boris Johnson trailing Keir Starmer across almost every personal characteristic. This is, obviously, very bad news. Whilst the Conservatives have trailed in the polls before, their leaders have often had leads in polls like 'who would make a better Prime Minister?', and the Tories have generally, except for a while under Tony Blair, had a strong lead in terms of voters' views of the economic competence of the parties, while Labour have generally had a better reputation with voters for their handling of public services such as the NHS.

What may be making a huge difference is the personal impact that recent economic changes have had on ordinary voters. This can be most notably seen in two key ways - recent tax changes that increase the National Insurance payments for a huge proportion of the population, and more obviously the huge increase to the cost of gas and electricity that have come in from April. Often people may view the economy as good or bad, but these changes mean that everyone has had a direct impact from these changes, and, rightly or wrongly, many people will blame this impact on the government.

Ronald Reagan famously asked voters "are you better off than 4 years ago?" back in 1980. It was a powerful question, which cut through to how they felt the direction of the country was impacting them. Keiran Pedley in the New Statesman points out the huge level of pessimism voters are feeling about the economy. Most expect things to get worse, in terms of petrol and energy costs, and this includes 51% of those who voted Conservative in 2019. The Tories have to convince voters that they should back them, despite the current way they are perceived and despite the impacts that the general public are feeling. This, and other scandals surrounding Rishi Sunak, have already seemingly destroyed him as a potential successor to Boris Johnson.

Boris Johnson, up to now, has been a consistent winner. Labour are not universally trusted on the economy (2019 Tory voters only marginally think Labour would do better), but are in a strong position. His record is going to be seriously tested on May 5th.