Since the time of Marbury v. Madison (1803) and McCulloch v. Maryland (1819) it’s been established that the Supreme Court has the final say on what laws are constitutional and that federal law overrides state law. These are matters of federalism and the separation of powers, and it don’t really touch small-d democracy. The people elect state and federal legislatures, and those legislatures can pass all manner of laws. But those laws won’t be enforceable if the Supreme Court says that they shouldn’t be enforced. Since the 1973 Roe v. Wade ruling, this has applied to many laws restricting abortion.
So, yeah, it might not be immediately obvious why Jill Filipvoic argues in The Guardian that the Court’s anticipated gutting of Roe v. Wade is a threat to democracy. If democracy is defined by the people’s will expressed through elected representatives, Court rulings that zero out legislation are anti-democratic. That’s the argument Tim Worstall makes in the Washington Examiner.
What the Supreme Court is going to do about Roe is unknown of course. What the correct policy and law on abortion should be is also obviously controversial. But if the court overturns Roe, then the issue devolves back down to the state legislatures — as was the situation before the case was decided the first time around. That means, obviously enough, that people can vote for those whose ideas on the subject they agree with. If enough do so, then the law will be written to accord with their views. That’s the democratic system, isn’t it? The people vote; the laws get made and changed. If the people don’t like the new law, they can vote again for politicians who offer to change it. So goes the democratic tradition.
Sending the abortion issue to the voters and the legislatures might be a good idea or it might not be. But doing so is undeniably the epitome, the very definition, of democracy.
I mean, seriously, how can letting people vote on something be anti-democratic?
The main problem with Worstall’s take here is that he’s completely unresponsive to Filipovic’s argument. She’s not saying that court rulings are a better expression of democracy than the work of elected legislatures. What she’s saying is that the current conservative anti-Roe composition of the Supreme Court is a frustration of the will of the people. She points out that “the rightwing stranglehold on the courts has been a long-term project achieved by devious means.”
Among the devious means are refusing to put President Obama’s nominee Merrick Garland on the Court in 2016 and then rushing through the Trump’s nomination of Amy Coney Barrett in 2020. But Filipovic also points out that Hillary Clinton won the popular vote in 2016 and it is only through the quirk of the Electoral College that Trump became president and was empowered to place three new conservative Justices on the Court. Without the democracy-frustrating Electoral College, there would not be a majority for destroying Roe.
Now, Filipovic does make an actual small-d democracy argument. She correctly notes that “Strong majorities of Americans support abortion rights and do not want to overturn Roe.” But this somewhat begs the question, because if elected legislatures don’t enact abortion restrictions then there is nothing here to look at. Clearly, there are states where abortion rights are unpopular enough to allow for laws that take those rights away. That’s where the role of the Court in interpreting the Constitution comes in. Sometimes, it is necessary to strike down laws despite their popularity.
But there is no higher authority on these issues than the U.S. Supreme Court, and it ultimately decides what is and is not constitutional. Worstall is basically right when he writes:
Overturning Roe would return abortion to the democratic arena, a domain that has been walled off from the issue for the past five decades. The entire point of a constitution (for the 99% who failed to stay awake in civics class) is to list the things that are not to be subject to democracy. Or at least not subject to short-term whims and fancies that can sweep through such a system.
And so here we get to the heart of the issue. Abortion rights are either to be decided by lawmakers or by the Court. But, in this case, there is no small-d democratic solution on offer. The Court’s anticipated ruling against Roe is anti-democratic not because it returns the decision to the states, and ultimately the voters. It’s anti-democratic because a different decision would be made by a Court comprised of Justices nominated by the winner of a popular election. It’s not only that a truly democratic election would have likely resulted in Hillary Clinton becoming president in 2017, but also that the people actually did elect Barack Obama in 2012 and yet he was prevented from putting Garland on the Court.
All of this basically sidesteps the merits of the legal case for reproductive rights. Supporters of Roe believe that there are constitutional rights at stake and that the Court should simply make the correct decision to uphold those rights. But, truthfully, we all recognize that the Court is completely politicized on the issue. The problem, then, is that there’s an illegitimate majority on the Court.
And, yes, it’s basically whining to complain about the Electoral College. But what happened with Garland and Barrett is a different kettle of fish.
Ultimately, Filipovic isn’t going to get far arguing that the problem is an anti-Democratic one because the fight for constitutionally protected reproductive rights is lost and will now be fought in a more democratic way. But her point is a solid one. This is only happening because of flaws in our democratic system.
