Alex Brandon/AP Photo
A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022, in Washington.
In poll after poll through multiple decades, roughly 60 percent of the American people have consistently supported Roe v. Wade’s guarantee of a constitutional right to abortion. The problem made glaringly apparent by Monday night’s leak of a coming Court ruling to repeal Roe is that there’s no constitutional right to majority rule.
The Court’s anti-Roe ruling, provisional until it is officially promulgated, is the result of a minority faction’s ability to win elections and govern. Four of the five justices who’ve signed on to the Roe repeal were appointed by Republican presidents who received fewer popular votes than their Democratic opponents: Sam Alito, appointed by George W. Bush, who lost the 2000 popular vote to Al Gore; and Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, appointed by Donald Trump, who lost the 2016 popular vote to Hillary Clinton. The Senate that confirmed these nominees is a creature of our primordial gerrymander, which affords two senators to every state regardless of that state’s population.
What the nation encountered on Monday night, then, was more than just the quasi-theocratic, anti-feminist biases of five justices. It was also an extension of our 18th-century founders’ fear of the populace into a 21st-century world in which a woman’s right to choose commands clear majority support.
The Court’s provisional ruling runs counter to the recent legalizations of abortion in a host of nations—most particularly, Ireland—where majority opinion has shifted decisively in support of a woman’s right to choose. If America looks to be going in the opposite direction of our fellow democracies, that’s precisely because they are governed by more recent constitutions than ours. As “the world’s oldest democracy,” we are entrapped, as they are not, by our forefathers’ majority phobia.
Increasingly, the nation’s preponderantly right-wing judiciary has been using its minority-enshrined power to overturn laws and rulings that have had wide popular and legislative support. Chief Justice John Roberts’s 2013 ruling in Shelby County v. Holder eviscerated the Voting Rights Act, which had recently been renewed by an overwhelming bipartisan congressional majority. Far-right judges in federal lower courts now routinely issue stays revoking laws and administration policies. Our conservative judiciary has effectively transformed itself into a law-making body answerable to no one and nothing but its own predilections.
Ridding ourselves of minority rule requires a fundamental revision of much of our constitutional edifice: the Electoral College, the structure of the Senate, our first-past-the-post electoral system, and perhaps judicial review itself. (In addition to questioning high-court nominees on Roe, we need to start questioning them on Marbury v. Madison.) Only somewhat less fundamentally, the case for “court-packing” has just experienced a surge of supporters.
None of those reforms are readily realizable, and some, like restructuring the Senate, are all but impossible under the current constitutional system. More short-term, if less thoroughgoing, victories, however, are eminently possible.
The immediate challenge confronting defenders of women’s rights is to use what leverage the majority still has to restore those rights. In a sense, the Court’s pending Roe revocation has transformed the upcoming midterm elections into a referendum on choice and greatly increased Democrats’ prospects of retaining control of Congress, or at least limiting their losses.
A significant number of Republican and independent voters—most particularly, more upscale women—are now far likelier to vote Democratic in the midterms. Republican congressional seats in California’s Orange County; the suburbs of Philadelphia, Chicago, and New York; and the districts in more libertarian Western states, including Arizona, Nevada, and perhaps even single-district Alaska and Montana, are now in play. The re-election prospects of Democratic Sens. Mark Kelly (Arizona) and Catherine Cortez Masto (Nevada) have brightened. Republicans’ ten-percentage-point advantage over Democrats when asked (last week in the most recent Washington Post poll) if they’re likely to vote has almost certainly already grown smaller. The turnout of young voters—an issue over which the Democrats have been fretting—will surely be increased.
Even in a democracy as flawed as ours, the majority, if it turns out in sufficient numbers, can still assert its right to rule.
