In the Australian and American systems of government there is much emphasis on a mechanism known as the “separation of powers”. This the idea that the judiciary, the legislature and the executive need to act in relatively separate spheres so that no entity oversteps their bounds. One consequence of this is that courts are guided in their decision-making by strict legal reasoning rather than by political influences. But it will be argued here that in the US Supreme Court, adherence to the principle of the “separation of powers”, is fragile at best and fictious at its worst.
Charges that the US Supreme Court places little value on remaining apolitical have been heard before, with regards to famous judicial decisions on racial segregation in schools, the Watergate scandal and the issue of an “Obama Judge”. But few were prepared for the recent dramatic development. On the 24th of June 2022 the court ruled that there was no longer a constitutional right to abortion. This abandoned the principle in Roe v Wade 50 years earlier. By taking away this right each US state now has the ability to act as they wish and take action to ban to abortion outright. In the three months since, 14 states have done exactly this.
It is too simplistic to look at this decision as a mere violation of human rights. The Dobbs decision tells us that the court does not mind if it acts without regularity or consistency. By removing the legitimacy of Roe v Wade the court has also decided that 50 years of precedent will be ignored. Roe has been used as evidence to extend and protect the limits of personal privacy and the list of federal and state bills and laws relating to the decision in this case is extensive. I feel compelled to ask, how is the judiciary not overstepping their bounds? are they not acting, merely as a politician in judicial robes?
The Dobbs decision is not outlandish. The Supreme Court is able, willing and consistently acts this way because of their right to interpret implied rights within the US Constitution. An interpretation of the constitution by the courts can only be overturned by a two thirds majority in congress. This is perhaps one of the only ‘allowed’ exceptions to the separation of powers rule. Therefore, in practice, the judiciary steps into the sphere of the legislature and the executive with ease and there is little that elected representatives can do about it.
If this breach of the separation of powers is ‘allowed’, then what acts as a check and balance on the court? The answer is that the Supreme Court has historically used precedent to limit its own power. This is what makes the Dobbs decision so powerful. In essence, courts made the other two branches of government a promise: If you give us more power, we will limit how we use it. This is known as the principle of stare decisis: to stand by things decided.
The decision to overturn Roe v Wade in the case of Dobbs v Jackson broke this promise. In overturning Roe, the court offers a new, weaker standard for overturning the past rulings of the court. We must be aware of the fact that Roe v Wade impacts issues beyond contraception. Next on the courts cutting block will be issues ranging from end-of-life care, LGBTQ+ rights and fertility treatments. Roe v Wade was a legitimising precedent in all of these decisions.
Supreme Court Justice Kavanagh himself tells us that “A good judge must be an umpire – a neutral and impartial arbiter who favours no litigant or policy.” How can this happen without any checks or balances? Dobbs shows us that these judges with no term limits, no popular vote and not even the other branches of government to keep them in check can do as they wish.
Grace Papworth is in her fourth-year undergraduate law degree and has a Bachelor of Arts degree majoring in politics at the University of Sydney. Grace is an intern with the Australian Institute of International Affairs.