The headquarters of the U.S. Supreme Court (Photo: Ansa/Epa/Shawn Thew

US: The supreme court and the drivers of social change

In the American culture war, the judicial avenue seems to be the solution to the conflict of values. Two recent rulings have targeted political correctness. But there are still many knots to unravel.
Pasquale Annicchino

The Supreme Court is at the center of the U.S. political and cultural debate, and given its global influence, this debate concerns not only the country where it exercises its jurisdiction but also numerous other countries, from the Western world and beyond, that look to the D.C. Court as a model to be inspired by in resolving disputes that the judiciary is called upon to decide. This is increasingly true in a context of global culture wars in which the pronouncements of the judiciary have assumed a decisive role in the face of the inertia of parliaments that prefer not to take decisions. As Ran Hirschl pointed out at the time, "The transfer of contested political issues to the courts offers a convenient retreat for politicians who have been unwilling or unable to settle contentious public disputes in the political sphere. It may also offer refuge for politicians seeking to avoid difficult or ‘no win’ decisions and/or avoid the collapse of deadlocked or fragile governing coalitions.”

Two cases in particular have been in the public eye in recent days. In regard to the case "Students for Fair Admissions, Inc v. Presidents and Fellows of Harvard College" (which came before the Court with another similar case), the Supreme Court declared the affirmative action policy by which several U.S. universities, over the years, decided to give a competitive advantage in admissions procedures, on an ethnic-racial basis, to groups of students belonging to certain groups deemed disadvantaged as unconstitutional. The main beneficiaries of this policy have been African Americans and Hispanics.

As with many issues relating U.S. public policy, opinions regarding affirmative action are highly polarized depending on the political ideologies of reference. For the majority of Supreme Court justices, affirmative action is a violation of the Equal Protection Clause of the federal Constitution. Chief Justice John Roberts helped make the Court's opinion a little less clear-cut by pointing out that universities will still be able to take an applicant's background into account during selection, even if it is determined by his or her ethnic background.
In a second decision, related to the 303 case "Creative LLC v. Elenis," the Court's majority (6-3) ruled that a Colorado law aimed at sanctioning discriminatory conduct, and which would have potentially forced a web-designer opposed to same-sex marriage to create websites even for couples who wanted to celebrate this kind of union, is unconstitutional because it violates the First Amendment's constitutional freedom of expression protection clause. Thus, it is not possible to force a professional to provide a particular service that violates what his or her conscience dictates. In this case, the Court draws a distinction between the conduct of someone who refuses to offer their service to a person because they are homosexual (this behavior would not be permitted) and the case of someone who, offering their service regardless of distinctions in sexual orientation, decides not to offer a particular service that would involve a violation of their deeply held beliefs motivated by their religious faith. In the contrary opinion, the Court's liberal minority criticized this approach of the majority, arguing that this interpretation does not conform to the Constitution.

The Court's decisions have quickly become part of the political-media cycle that animates the debates of a polarized society like the United States, which is increasingly characterized by the centrality of culture wars. Particularly revealing in this regard are President Joe Biden’s words during an interview with broadcaster Msnbc: "I think this Court is so out of sorts with the basic value system of the American people" and that "the vast majority of American people don’t agree with a lot of the decisions this court has made." The Supreme Court's popularity with the public has seriously deteriorated in recent years. While in 2001, under the presidency of Justice William Rehnquist, the Court registered a popularity rating of 62 percent, last September it was down to 40 percent. Although some criticism has also been registered for political or ideological reasons that lead people to disagree with the Court's decisions on the basis of their outcome, there must also be a decline in trust due to recent ethical-moral controversies concerning the behavior and potential conflicts of interest of some members of the Court.

Thus, there is now open debate about a potential court-packing plan that would lead to upheaval of the Court's conservative majority through the appointment of new ideologically left-leaning members or of further reforms such as, for example, the introduction of a time limit on the Court's judgeships with the aim of ensuring a more rapid change in the composition of the supreme judicial body. Another dimension should perhaps be added to Hirschl's aforementioned reflection, which is that of various social actors, progressive or conservative, who believed that they could influence the culture, society and behavior of individuals by targeting the role of the judiciary and the Supreme Court. The aim was to use the Court not only to resolve disputes, but also to determine messages of inclusion or exclusion in order to define a semiotics of reality in, as Robert Cover put it, of "a field of pain and death."

The judiciary, after all, is epistemologically obliged to keep meanings, interpretations, alive and kill others. This action appears to be in line with the apocalyptic profile that characterizes large sectors of U.S. civil society operating in a polarized society brought, increasingly, to tribalism and division. In this context, the judicial resolution of social disputes can become a convenient shortcut that allows one to avoid taking on the long and laborious work of listening and social growth inspired by dialogue and wisdom, to use the words of Pope Francis "open and in motion, at once humble and inquisitive." There is only one question then to ask: is it possible to change the world through the exercise of jurisdiction? Or does jurisdiction merely follow the changes in the world?

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This question is particularly important in cases involving the religious factor and the role of religion in the public sphere. One wonders if the judicial path to protecting the role of the religious factor and its relevance is really efficient or hides optical illusions that should be investigated. While it is true that the decisions of the judiciary sometimes act as an accelerator of important cultural processes, the exercise of jurisdiction is hardly the lever that actuates social change. This, most of the time, follows rather than precedes change. It may be convenient to think that one can affect important socio-cultural processes by appointing more judges close to one's ideology that will lead to more judicial victories. From this perspective, the recent history of the U.S. religious right should be a success story. Looking at what is happening in society and the role of religion in the public sphere, however, the situation appears more complex. There is life beyond the decisions of judges.

* Researcher at the University of Foggia Law Department and member of the OSCE/Odihr Expert Panel on Freedom of Religion or Belief