US president Joe Biden will in the weeks ahead have the opportunity to carry out a constitutional role that can have an impact lasting decades – the nomination of a judge to the supreme court.
Earlier this week justice Stephen Breyer, who is 83, signalled his intention to retire. Breyer is considered a centrist politically and a supporter of abortion rights, environmental measures and healthcare coverage. There had been concern among Democrats that if this post came to be filled after they lost control of the Senate, it would give Republicans the opening to shift the ideological balance further to the right.
However given the current 50:50 split in the Senate and the reliance on vice-president Kamala Harris to break any tie, whoever Biden opts to nominate is likely to face a tough authorisation process.
Nominations to the supreme court have become a hugely important feature of the presidency in the US in recent times.
One of the longer lasting legacies of Donald Trump as president will be his re-modelling of court.
The appointment by Trump of three justices, who now give it a distinct 6:3 conservative tilt, has the potential to change the social, cultural, educational and environmental landscape of the country for decades ahead in ways that were unlikely to be achieved through the legislative route in Congress.
Trump was given the opportunity to re-shape the court through fate – and some ruthless (some would argue cynical) – politics by Republicans in the Senate.
Liberals fear the impact of the appointments of Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett is already being felt on the thinking of the court. And they worry the new conservative majority could lead to major changes to existing rights in key areas.
First among these will be abortion.
The court is due to rule in the summer in a case many see as the most significant challenge to the 1973 decision that abortion was a constitutional right across America.
The oral arguments last year led many legal observers to forecast that the court is set to either overturn or seriously restrict existing abortion arrangements .
Last week thousands of anti-abortion activists gathered in Washington for the annual “march for life” rally. Many believe their long-term objective of getting rid of the Roe v Wade ruling from 1973 is so close now they can almost touch it.
In recent days there have been other developments in the court that have also put liberals on high alert.
The court announced last Monday that it will once again examine – in cases involving Harvard and the University of North Carolina – whether universities may consider the race of applicants as part overall wide-ranging evaluation of who should be admitted.
Supporters of affirmative action believe this practice helps students from minority backgrounds who are under-represented at third level institutions.
Some fear that the court, by taking up the new cases, could ultimately rule that there should be an end to affirmative action.
However some campaign groups such as the Students for Fair Admissions organisation – which is involved in the new litigation – contend that any such racial preferences are unnecessary, unfair and unconstitutional.
It said on Monday that most Americans of all races did not believe race or ethnicity should be a factor in college admissions.
“ In a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others. Our nation cannot remedy past discrimination and racial preferences with new discrimination and different racial preferences,” it said.
‘Aggressively conservative direction’
Harvard University president Lawrence Bacow, on the other hand, said the decision of the supreme court to review “the unanimous decisions of the lower federal courts puts at risk 40 years of legal precedent granting colleges and universities the freedom and flexibility to create diverse campus communities”.
“Considering race as one factor among many in admissions decisions produces a more diverse student body which strengthens the learning environment for all.”
The White House said the Biden administration strongly believed in the benefits of diversity in higher education.
The supreme court also signalled this week that it would take up a challenge to existing legislation on clean water, which supporters fear could narrow the law’s reach in ways long sought by businesses and developers. The case involves a couple who are seeking to build a home on land near the scenic Priest Lake in Idaho. The Environmental Protection Agency maintained that wetlands on the couple’s property meant it fell within the jurisdiction of the Clean Water Act and therefore required a permit.
Separately next month the court is scheduled to hear oral arguments in cases challenging the EPA’s authority under the Clean Air Act to regulate greenhouse gas emissions from coal-fired power plants.
The liberal Constitutional Accountability Centre in Washington maintained, in a statement to the Reuters news agency this week, that the current court with its six-justice majority “seems willing to push ahead in an aggressively conservative direction on multiple fronts, without feeling the need to be moderated by concepts of judicial restraint, stare decisis [the doctrine of respecting precedents] or incrementalism”.