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The anti-majoritarian difficulty


I have a piece at the Prospect assessing Republican claims that overruling Roe will mean that the issue will be resolved by more democratic means:

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.”

And in addition to the fact that appeals to judicial restraint fall flat when made by a hyper-activist Court, Republicans are actively working to make American political institutions less majoritarian and democratically responsive. Overruling Roe is many things, all of them bad, but democracy certainly has nothing to do with it.

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