On two Supreme Courts, and what hangs in the balance…

Shalini Nataraj
Shalini Nataraj


The past week I have felt the same sinking feeling in the pit of my stomach, and the alternating feelings of extreme outrage and hopelessness brought on by the Judge Brett Kavanaugh hearings that I, and so many millions in the country felt on November 8, 2016, when Trump won the electoral college votes.


This time though, the stakes are even higher.  Presidents come and go, but the current Supreme Court justices will sit on the court and make decisions that will govern our lives for at least the next 40 years.  If Kavanaugh wins the nomination, five men that Republicans have nominated will control the Court and we can expect “settled law” such as Roe vs Wade to come under attack, as well as laws protecting labor rights, environmental regulation, laws limiting corporate spending in election campaigns, any attempt at gun control as violating the Second Amendment, and rulings that put business interests over those of workers and the public good.


Vanita Gupta, President and Chief Executive Officer of the Leadership Conference on Civil and Human Rights and was former head of the Office of Civil Rights at the Department of Justice under Obama, was present at the hearings and was appalled at Kavanaugh’s belligerent and partisan behavior.  The Leadership Conference earlier sent a letter to all 100 senators to oppose the nomination stating that “Critical civil and human rights issues hang in the balance, including access to health care for millions of Americans, the ability of women to control their own bodies, voting rights, labor rights, economic security, rights of immigrants and persons with disabilities, LGBTQ equality, equal opportunity and affirmative action, environmental protections, and whether the judiciary will serve as a constitutional check on a reckless president”.


These are scary times.  The Supreme Court is supposed to be the check on excesses committed by the Legislative and Executive branches of government.  With Trump in office, one can only imagine the excesses that might be overlooked by the highest authority in the country.  It is no secret that the reason Trump probably chose Kavanaugh is because of his opinions on whether a sitting President can be indicted. Sen. Cory Booker (D-N.J.) tweeted, “Kavanaugh has written extensively on his beliefs that a sitting president shouldn’t be subject to criminal investigations or civil lawsuits — this all but assures he would work to shield Trump from any litigation or criminal proceeding related to the special counsel’s investigation.”


Meanwhile, the Indian Supreme Court has exhibited a level of progressiveness that is to be commended.  The Court repealed two regressive and discriminatory colonial-era laws in the last two months, Section 377, criminalizing consensual gay sex, and Section 497, a 158-year-old adultery law where a man could be imprisoned for up to five years for engaging in sexual relations with a married woman without the consent of her husband.  The laws were struck down despite the Modi government’s displeasure in both cases.


In addition, India’s Supreme Court has recently intervened to demand that the Indian government explain the arrests of five prominent activists – poet Varavara Rao in Hyderabad, activists Vernon Gonsalves and Arun Ferreira in Maharashtra, trade union campaigner and law professor Sudha Bhardwaj in Faridabad, and civil liberties activist Gautam Navalakha in New Delhi. Subsequently the five activists were released.


According to Justice Dhananjaya Yeshwant Chandrachud of the Indian Supreme Court on this case, “Dissent is the safety valve of democracy. If you don’t allow the safety valve, the pressure cooker will burst.”  The actions of India’s highest court holds much promise in checking the Indian government’s excesses.


I can only hope that the Indian Supreme Court will continue to pave the path to a more enlightened example of how societies should be governed.


[Shalini Nataraj is currently Vice President of Programs with the Ing Foundation, a private philanthropy focused on advancing human rights.  The views expressed in this piece are her own]

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