Karla Ann Cote/NurPhoto via AP
Thousands of abortion rights protesters rallied at Foley Square in New York, May 3, 2022.
In the draft opinion announcing the overruling of Roe v. Wade that was leaked to the public last week, Justice Samuel Alito tried to evade the radical implications of the Court’s holding by appealing to the virtues of democracy. Quoting from Justice Antonin Scalia’s dissent in Planned Parenthood v. Casey, the opinion asserts that controversies about abortion should be resolved “by citizens trying to persuade one another and then voting.”
While superficially appealing, these appeals to democracy and majority rule are stunningly disingenuous. The Court is about to overrule a very popular and well-established precedent, yet its desire to defer to “the people and their elected representatives” is, to put it mildly, selective. And because of various counter-majoritarian aspects of American constitutionalism—some pre-existing and exploited by Republicans, others actively created by them—the result will be policies on abortion that are far more restrictive than what a majority of voters want. What Republicans want is a world in which raw power rather than voter persuasion carries the day.
The most obvious way in which overruling Roe is counter-majoritarian is that the public has consistently supported the Court’s 1973 decision and still wants it to be upheld. This does not in and of itself mean that the Court’s pending decision to overrule it is wrong. But there is no precedent for the Court taking away a right that has gained this kind of popular acceptance, has been entrenched for so long, and that so many people have a deep reliance on. The fact that the Court does not have the public behind it can be seen in the general lack of candor Republicans have about their goals whenever a Supreme Court nomination is at stake. (The Wall Street Journal’s editorial board has seamlessly pivoted from assertions that a Republican-controlled Court would not overrule Roe to assertions that the sweeping condemnation of the logic underlying all of the Supreme Court’s precedents on sexual autonomy in Alito’s draft opinion should not be taken seriously or literally.)
Still, while I think that overruling Roe is a horrible mistake that will have extremely dire consequences, it would be much more tolerable if Alito’s rhetoric about judicial modesty and the importance of representative democracy could be taken at face value. The Supreme Court has for much of its history played a much greater role in American public policy disputes than is desirable or appropriate, and a reduced role for the Court in American politics would be welcome, even if it would inevitably mean fewer decisions liberals like too. Needless to say, however, judicial modesty is not what we’re going to get. The Roberts Court has always been remarkably arrogant and overbearing about its role in American government, and this is about to get a lot worse. And the complaints in Alito’s opinion about Roe’s alleged lack of rootedness in American constitutionalism are almost impossible to take, given how little legal foundation many of its most important opinions have.
To choose from a countless array of possible examples, Alito has joined and in some cases authored multiple opinions completely destroying the Voting Rights Act, based on constitutional and/or statutory arguments that are monuments to bad faith. Most of the Republican-controlled states that are reasonably or potentially competitive in statewide elections have with the Supreme Court’s (and Alito’s) blessing created legislative maps so egregiously gerrymandered that Republicans have essentially permanent control, irrespective of the will of the voters. Alito also wrote the opinion creating a constitutional right for people to get the benefits of collective bargaining without sharing the costs. This was intended to weaken the power of unions, a countervailing force in economic and political life, weakening the power of citizens to work together “to persuade one another.”
Meanwhile, the Court routinely intervenes in decisions made by elected officials. Alito shamelessly cited in his draft opinion the increased availability of health insurance for maternal care, while neglecting to note that he voted multiple times to strike down the Affordable Care Act based on embarrassingly weak arguments. Many poor people still don’t have health insurance because the Court decided to ineptly rewrite the ACA’s expansion of Medicaid. The Roberts Court has also rewritten the Federal Arbitration Act to preempt a wide array of consumer protections passed by state legislatures, creating arbitrary rules with no foundation whatsoever in the text, purpose, or structure of the act itself. It has used unreasoned orders on its “shadow docket” to replace the Biden administration’s actions with policies it prefers, on matters as weighty as the nation’s response to a historic pandemic. And it appears poised to substantially eviscerate the power of the administrative state based on a doctrine whose “deep roots” extend to two opinions dealing with one statute decided a few months apart in 1935. There are countless other possible examples; this Court can be called many things, but modest or restrained are at the bottom of the list.
The Court’s systematic hostility to voting rights is particularly important context for the draft opinion’s empty tributes to the “people’s representatives.” The post-Roe politics of abortion will take place on a severely tilted playing field, and in many cases Republicans will not have to persuade anything like a majority of voters to pass draconian anti-abortion legislation. Reproductive rights won’t be guaranteed to be protected in safe blue states, either. The next Republican trifecta at the federal level could very well pass some kind of national package of abortion regulations and restrictions, and the combination of gerrymandering in the House and malapportionment of the Senate means that they don’t need national majorities to win the Electoral College and have a large enough margin for error in the Senate to pass them.
When the decision to overrule Roe finally comes down, in what will now be an even more anticlimactic fashion, the Republican party line will be that it is a triumph for democracy and judicial restraint. It will be neither. It will simply create a world in which both state and federal legislatures can force a teenage girl to carry her rapist’s baby to term. Nothing about this decision will do anything but make American democracy and the equal citizenship it critically relies on worse.
