For a justice system to work, people have to believe in it. And it looks like a lot of Conservatives are losing sight of that principle in the United States, a country where Trumpism continues to wreak havoc.
And where the right to abortion has never, for nearly 50 years, been so threatened.
A U.S. Supreme Court judge tried to warn them on Wednesday as the court considered a Mississippi law that bans the practice of abortions after 15 weeks of pregnancy.
“We have to have public support and that mainly comes from the fact that people think we are doing our job,” said Stephen Breyer, one of the three progressive judges (out of nine) of the tribunal.
Their work ?
That of judges, independent, impartial and pragmatic.
Judges who, it is fundamental, are not “simply politicians”, he specified.
This debate is intensifying because the Supreme Court could outright overturn Roe v. Wade, who legalized the right to abortion across the country.
Most observers agree that things aren’t looking good for this momentous verdict. And that if the court does not annul it, it runs the risk of restricting its scope.
A majority of judges could, for example, rule that abortions are illegal from 15 weeks, as the Mississippi wishes.
Either way, the verdict would be both historic and dramatic.
And heavy consequences for the women of the country.
Brief reminder: according to the decisions handed down over the last decades, abortion cannot be prohibited until the moment when the fetus is considered viable, which corresponds to approximately 24 weeks.
Hence Judge Breyer’s warning. He believes that if the Supreme Court makes a decision that restricts the right to abortion, many people will get the impression that it is playing politics.
Especially since such a verdict would be possible only because Donald Trump was able to appoint three conservative judges to the Supreme Court.
Stephen Bryer, now 83, published an enlightening book on the workings of the Supreme Court of the United States about ten years ago.
In it, he tackles a principle of the utmost importance in the case currently before his tribunal. The one that past decisions should generally guide future ones.
That is to say “the need to ‘maintain what is decided'” (stare decisis in Latin).
We also talk about the importance of stability.
“It is stability that makes the justice system and that makes the law itself viable. Without stability, court decisions appear ad hoc and unpredictable – without being part of a system at all. This is contrary to the objectives of the Constitution and tends to undermine the citizen’s acceptance of the decisions of the Court, ”he writes.
Previous decisions have already been overturned, of course. Society is changing. Some verdicts become downright untenable.
The Supreme Court, for example, in 1896, concluded that a railway company could force black travelers to use a different wagon than white passengers. Several decades later, she came to the conclusion that racial segregation was against the Constitution.
The overturning of rulings like this was cited on Wednesday by conservative judges to demonstrate that, yes, sometimes the highest court in the land decides to review its own rulings.
But both judges and American citizens know very well that any decision rendered on abortion affects a fundamental right for women, that of liberty.
And American citizens also know that while Roe v. Wade had to be canceled or weakened, not because public opinion changed. Nor would it be proof of the progress of American society, it would be a way of making it regress.
It would be the archaic expression of the ideology of judges, appointed by conservative presidents, who reinterpret the law according to their convictions because they believe that their predecessors erred in legalizing abortion.
Both this coming decision and its repercussions (because there will be dramatic consequences for women who will seek at all costs a way to obtain an abortion if the procedure were to be prohibited in a large number of states) will undermine further the legitimacy of the Supreme Court.
In a wildly split country, where confidence in democratic institutions is plummeting, that would be very, very bad news.
But even before this verdict is delivered to our neighbors to the south, the case has something to give us pause for thought.
She reminds us that the debates over abortion, which resurface with every federal election campaign in Canada, are far from futile. We must defend this right tooth and nail in Canada.
It also reminds us that nothing can be taken for granted. That even our most dearly acquired rights are not irreversible. And that the independence and legitimacy of our courts are invaluable values.