The US Supreme Court and questions of justice

In the UK we are used to Parliament being the law-making body for the nation. But a recent ruling by the UK Supreme Court on the meaning of “sex” for the purposes of gender discrimination showed that sometimes it’s the Supreme Court that has the final word.

How the US Supreme Court works

Our Supreme Court is not yet 20 years old and is only just beginning to make its mark. The United States Supreme Court, on the other hand, was created back in 1789 as a coequal branch of the federal government, alongside Congress and the Presidency. It even has the power to declare Acts of Congress unconstitutional, and thereby null and void. (The UK Supreme Court has no comparable power.) Through this power, the US Supreme Court has become the final arbiter of what the laws mean and, most importantly, what the Constitution means. That’s why most important cases of legal and constitutional importance end up there.

The Court is made up of nine justices – appointed (for life) by the President with the consent of the Senate (the upper chamber of Congress). It matters as to whether a justice is appointed by a Democratic or Republican president. Democrats tend to appoint justices more likely to be liberal; Republican appointees are more likely to be conservative. At the moment there are only three Democratic appointees on the Court, but six Republican appointees including three Trump appointees from his first term. But it’s never quite as simple as that. Cases before the Court are often complex, and justices are not automatons, sometimes coming up with surprising decisions.

'Surprising decisions'

In 2022, the Montgomery County Public Schools – Montgomery is a county in Maryland adjacent to Washington DC – issued a list of books with LGBTQ+ characters that could be used in English classes. For example, one book told of a mother making a colourful wig for her transgender daughter; another of a girl making a Valentine card for a girl classmate she had a crush on. At first, school heads allowed parents to remove their children from classes in which such books were used, but the opt-outs were stopped. That’s when the court cases started.

In the case of Mahmoud v. Taylor, the Supreme Court heard a challenge by a group of Montgomery County parents who objected to rules barring them from taking their children out of lessons that used storybooks with LGBTQ+ characters and themes. The parents said the themes of these stories conflicted with their religious beliefs. Now the Constitution’s First Amendment states that governments “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” So the Supreme Court was being asked in this case to decide whether or not the Montgomery County Public Schools were prohibiting these parents from “freely exercising their religion” by barring them from removing their children from classes in which such books were used.

On 27 June, the Court announced its decision to uphold the parents’ right to withdraw their children from classes in which such LGBTQ+-themed books were used. It was a 6–3 decision in which the Republican-appointed (conservative) justices were in the majority. Justice Samuel Alito (an appointee of President George W. Bush), writing for the majority, said that government officials infringe the rights of parents when they require them to “submit their children to instruction that poses a very real threat of undermining the religious beliefs and practices that the parents wish to instil.” From the other side, Justice Sonya Sotomayor (an appointee of President Barack Obama) writing for the minority, said that the Court’s decision “strikes at the core premise of public [i.e. state-run] schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society.”

For the school administrators, a statement said that they were “disappointed” by the decision, and that it “complicated” their work to create “a welcoming, inclusive and equitable school system”. Such arguments may sound familiar to parents of children in UK schools.

The decision will have far-reaching consequences in the US, for it affects schools not just in Maryland but across the entire nation. Supporters of “diversity and equality” issues will feel somewhat threatened, while supporters of parental rights will feel emboldened, possibly leading to further court challenges on related issues.