In a leaked majority opinion briefing, written by Justice Samuel Alito, it has come to light that the Supreme Court will vote to overturn the landmark ruling in Roe v. Wade. In the document, it shows that the ruling would be to completely overturn the ruling. Given that a majority of the United States voting populace supports the Roe v. Wade decision, the court’s decision is blatantly and staunchly anti-democratic.
Yes, the Supreme Court’s stated role is to interpret the law, as Justice Alito so kindly reminds the reader (https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473) in the briefing, writing that “We can only do our job, which is to interpret the law, […] and decide this case accordingly.”. However, his statement that ‘We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey” is patently false. For over 40 years, the Republican Party has been trying – rather publicly – (https://www.vox.com/23055389/roe-v-wade-timeline-abortion-overturn-political-polarization) to overturn this ruling, and to outlaw abortion in their respective states. Indeed, since the majority opinion briefing has leaked, several states have already announced legislature (https://www.nytimes.com/2022/05/19/us/oklahoma-ban-abortions.html) to outlaw and criminalize abortion to be put in place immediately following the ruling. In addition, polling data on the American public’s perception of Roe v. Wade has been available for decades. Justice Alito feigning ignorance would be laughable if the stakes were not so high.
Furthermore, Alito goes on to state “Even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.” This statement begs the question, to what extent does the Supreme Court need to follow public opinion? While it has been established both by the Constitution and the legal tradition of this country for the Supreme Court to act independently, the political leveraging of court systems is nothing new. The book, ‘How Democracies Die’, by Steven Levitsky and Daniel Ziblatt, details how autocratic regimes seize control of the courts, through packing or other means, and transforming these otherwise neutral organizations into tools to suppress opponents. In the case of Roe v. Wade, there is no question that overturning the case would not align with the opinions of the majority of Americans, as shown by the Gallup polls conducted on the topic. In one of these Gallup studies (https://news.gallup.com/poll/393104/pro-choice-identification-rises-near-record-high.aspx), 52% of Americans view abortion as “morally acceptable” for the first time since 2001. Additionally, those saying abortion is “morally” wrong has dropped from the 50% it was for most of the 21st century, to 38%. A Wall Street Journal-NORC poll showed that access to abortion if the woman can’t afford more children was supported by 59% and 57% for those requesting an abortion regardless of the situation.
What does require argument is the usage of the courts as political tools. The facts of the matter are as follows: Former President Donald Trump won the 2016 election without securing a majority of the votes. No president since Ronald Reagan has appointed more than 2 Supreme Court justices in the duration of their tenure. Former President Donald Trump served only one term. Need anything else be said to demonstrate that the Supreme Court does not reflect the mindset of the United States populace? Supreme Court appointees are chosen by democratically elected officials; it should therefore stand to reason that their judicial opinions are reflective of the voting populace at the time of their appointment.
In Arend Lijphart’s book ‘Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries’, he lists eight guarantees necessary for any democracy to reasonably function. Eighth of these is as follows: “Institutions for making government policies depend on votes and other expressions of preference.” Through votes, we saw that the majority of the United States populace did not support Donald Trump. Through Gallup polls, a different expression of preference, we saw that a majority of people in the country were in support of the Roe v. Wade decision. With both these in mind, our federal institutions should be dependent on and reflective of this sentiment. However, with the Supreme Court acting against this public sentiment, this eighth institutional guarantee is violated.
The obvious conclusion to reach is that the leaked Roe v. Wade decision represents a degradation of democracy. As our core institutions become increasingly out of touch with the will of the people, the foundational idea for all democracies, democratic erosion is the unfortunate but logical outcome. One can only hope that the partisan politics that governed this majority opinion draft soon make leave from the American judicial system.
Hi Andrew, great article. I love how you drew upon justices’ own words to make your point, and I also enjoy how you directly referenced “Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries.” It is incredibly concerning to me when a democracy removes protections that had been in place for decades for a large swath of the population. This is what is happening right now with Roe v. Wade, and I think it’s a bad sign for our democracy.