Angelika The German journalists have already written their fingers to the bone about the latest decisions of the American Supreme Court. So you should already be well informed. But not everything that was written explained the situation correctly and based on facts. But we all agree that the decisions will have or already have groundbreaking consequences. It is on everyone's lips that the abortion law that has been in force throughout the USA for almost 50 years has fallen. Back in the day, the case "Roe versus Wade" had been decided in favor of the plaintiff Norma McCorvey (called "Jane Roe" in the proceedings) by the Supreme Court in 1973.

The highest judges at the time determined that the right to privacy afforded to all women in the USA included the decision to continue or terminate a pregnancy, and that this could not result in any state prosecution. This right to privacy is outlined in the 14th Amendment of the American Constitution. More specifically, it is derived from the so-called "Due Process Clause" which states that the state cannot arbitrarily deprive its citizens of life, liberty, and property.

In June of this year, the Supreme Court finally decided in a 6-3 decision that the right to privacy does not lead to a uniformly applicable right to abortion in all states, but that the individual states must decide for themselves whether and how they want to grant this right. It is therefore possible to completely prohibit abortions without exceptions, but on the other hand also to allow them, or to extend the existing right, depending on what the state decides.

In California, for example, where the court ruling has not changed anything regarding the right to abortion, our governor Gavin Newsom is currently working to include the right to abortion in the California Constitution as an additional article. In November, the California voters will decide whether they want to change their constitution in this regard. In Alabama, however, abortions are now prohibited without exceptions, even in cases of rape and incest.

Since "Roe v. Wade" was decided in 1973, anti-abortion opponents have vehemently and often violently opposed the right to abortion in the USA. I remember well the various attacks on clinics that performed abortions. Legal experts feared from the beginning that the derivation of the right to abortion, based on the constitutionally granted right to privacy, had been on shaky feet, even those experts who generally welcomed the decision. However, the Supreme Court had been very reluctant to reverse the established rights. If you have followed the recent hearings in the Senate, whenever a new seat on the Supreme Court was to be filled, it was also about checking the candidates to see if they accepted cases like "Roe v. Wade" as a precedent. Incidentally, surveys have repeatedly confirmed that a majority of Americans (about 60%) wanted "Roe v. Wade" to remain untouched. I already wrote in the last newsletter that I increasingly feel that we are all regressing. There are really enough problems to be solved and we are getting into a culture war that seemed to be solved a long time ago.

Incidentally, there have been long-standing efforts to make some fundamental changes regarding the highest American court in order to counter the increasing politicization of the court. Many would like to implement that judges are no longer appointed for life. The Founding Fathers actually wanted to prevent politics from taking too much of a forefront in the Supreme Court. Therefore, it is stipulated that Supreme Court judges are not elected, but appointed, and there is no time limit as to when they have to vacate their posts. It was intended to make the court less susceptible to political currents.

Unfortunately, increasing life expectancies have had the opposite effect, as the women and men on the Supreme Court now keep their robes on average for almost 30 years, thus shaping not only the highest court but also life in the USA through their decisions for decades. For comparison: until the early 70s, the average term of office for the judges was 15 years. Constitutional judge John Paul Stevens, on the other hand, still sat on the bench at 90 years of age and was active at the Supreme Court for a total of 34 years. Of course, the judges are free to retire or leave for other reasons, but many cling to the office until their last hour. Few retire voluntarily.

The illustrious exceptions are Stephen Breyer, who recently retired at 83 years old, and Anthony Kennedy, who stopped at 82. Now, that's not exactly a typical retirement age, but Stephen Breyer, who was one of the more liberal justices on the Supreme Court, wanted to make sure that President Biden nominated his replacement, so that the position would go to someone with a more moderate or liberal background, which is what happened. Ketanji Brown Jackson was sworn in on June 30, 2022, after the Senate, which currently has a narrow Democratic majority, confirmed her, following the required hearings.

It's been a common occurrance lately that Supreme Court judges just pass away while in office. Antonin Scalia suddenly passed away at 79 years old, and Ruth Bader Ginsberg at 87 years. Both were active at the Supreme Court until their death. Many who followed the court's rightward shift with concern repeatedly appealed to Ruth Bader Ginsburg, who belonged to the more liberal wing of the court, to retire, so that then-President Obama could appoint her successor. Ginsburg was seriously ill with cancer and had relapses. But she couldn't be persuaded to quit and fate took its course. Ginsburg died in 2020 when Trump was president, who then nominated the conservative judge Amy Coney Barrett, who was confirmed by the Senate. The composition of the court would look very different if Ginsburg had not made this blatant miscalculation.

Limiting the term of office for Supreme Court judges is actually a quite popular opinion amongst American voters, even across party lines. Many legal experts also support this. The most common proposal is to set the term of office of the judges to 18 years, which would mean that an incumbent president could appoint two judges per term on average. However, the experts are divided on whether this would require an amendment to the Constitution. The American Constitution does not directly mention a limitation of the term of office and the formulation of how long judges should remain in office is very vague and open to interpretation: "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour". Now, an amendment to the Constitution would be a very lengthy process. It would require a 2/3 majority in both houses, i.e. in the Senate and the House of Representatives, and then three-quarters of the states would have to agree to the amendment.

Incidentally, there is no term limit or retirement age for senators or representatives in the House of Representatives. More and more people over 80 hold very important positions in these institutions. Nancy Pelosi, the Speaker of the House of Representatives, for example, is 82 years old and is running again in November to defend her position. Republican Mitch McConnell, who is 80, has been in the Senate since 1985 and is currently the minority leader. Or Diane Feinstein, who has been a California senator since 1992 and is now 89 years old, but still isn't thinking of retiring. Reports are increasing on Feinstein, that she is suffering from dementia and is no longer up to the task.

Surely there may be a few very fit people over 80 years old, but perhaps it's time to let the next generation take the helm. President Biden had promised that he would only serve one term as president, but now it is rumored that he wants to run again in 2024, which also puts him over the age of 80. In my opinion, this would be a blatant mistake. Hopefully someone will talk him out of this idea. I can't understand how anyone could be so eager as to continue in such a demanding job at high age. At least, American presidents are limited to a maximum of eight years in office by the constitution.

Now back to the Supreme Court: Another idea is to appoint more judges to the highest court in order to achieve better balance. This proposal is somewhat jokingly referred to as "packing the court." The American Constitution does not specify the number of judges on the Supreme Court either. The number has historically fluctuated between five to ten judges. Since 1869, however, it has been set at 9. The US Congress can set the number, so a change in this regard would be easier to implement if the corresponding majorities in the Senate and House of Representatives can be found. Many, however, doubt that this will accomplish much, and fear that it will turn into an eternal back and forth, depending on which party has the majority, and the whole thing will turn into a political puppet theater.

Addendum from Michael: For readers who would like to be well-informed on the topic "Roe vs. Wade" in German, I hightly recommend the article by Thomas Fischer in the German magazine Der Spiegel. He's one of the few writers in Germany and especially in the online issue of Spiegel, who still report in a well-founded manner, and not just produce click-bait while featuring colorful hair and sensational glosses to attract attention at any cost.

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• More topics you might be interested in:

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