Current Affairs

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If We Want the Supreme Court to Stop Legislating, We Need Real Legislators to Do Their Jobs

The recent Supreme Court leak raises questions about the ongoing debate over what role the court should have in a representative democracy.

Last week, in the case of Dobbs v. Jackson Women’s Health Organization, a draft opinion of a Supreme Court case overturning Roe v. Wade was leaked to Politico. The case involves a 15 week abortion ban that contains no exceptions for incest or rape. Although Roe v. Wade is the case that initially established abortion as a constitutional right, the prevailing standard is Planned Parenthood v. Casey, which establishes that the government cannot prohibit a woman from seeking an abortion before the age of viability—currently around 23 or 24 weeks of gestation.

If the draft opinion does, in fact, represent the majority of the Supreme Court’s view, it will have the effect of ending the constitutional right to an abortion. Going forward, states will have the power to promulgate laws that limit abortion access absolutely, regardless of whether conception occurred as a result of rape or incest, whether the pregnancy threatens the mother’s life, or even whether the fetus is viable. Currently, 22 states have total or near-total abortion bans on the books.

Such an outcome would be contrary to what a majority of Americans believe should happen. Fifty-four percent of Americans believe Roe should be upheld. Only 28 percent believe it should be overturned. Furthermore, according to a recent Washington Post-ABC News poll, 69 percent say that their state should either make abortion easier to access or keep access the same, while only 1 in 4 say it should be harder to get an abortion.

In the same poll, overwhelming majorities say that abortion should be legal if a woman’s health is endangered (82 percent), in cases of rape or incest (79 percent), or in case of serious birth defects (67 percent).

The fact that this court’s opinion is so out of step with public opinion has led some to argue that the decision is an example of inappropriate judicial activism. As Vox’s Ian Millhiser tweeted, the opinion was written and joined by “five unelected aristocrats, three of whom were appointed by a professional con man who received 3 million fewer votes than Hillary Clinton, [who] decided to do a tyranny.”

But as Glenn Greenwald pointed out in a recent piece on his substack, the Supreme Court was designed to be an anti-majoritarian check on majoritarian power. The Federalist Papers are clear about the perceived danger of “factions” united against the rights of other citizens. As Greenwald writes:

When the court strikes down laws that majorities support, it may be a form of judicial tyranny if the invalidated law does not violate any actual rights enshrined in the constitution. But the mere judiciary act of invalidating a law supported by a majority of citizens—though frequently condemned as “undemocratic”—is, in fact, a fulfillment of one of the court’s prime functions in a republic.

Many people were angry at Greenwald for this take because they read it as an agreement on his part that there’s no constitutional right to abortion. But I read Greenwald’s argument as narrower than that. He was pointing to a basic truth: one can argue that the Constitution does, in fact, provide for the right to choose by reading an applicable right to privacy clause into it. But abortion access having popular support is not a basis for dismissing the draft Dobbs opinion. If you have a problem with the Supreme Court having an anti-majoritarian bias, you have to change the court.

Many legal scholars have argued that the fix we need is to rein in the power of the Supreme Court—either by eliminating it altogether or by significantly weakening it.

That might sound severe, but consider this: the Court’s authority to review legislation and invalidate it as unconstitutional is not a power written into the Constitution, nor was it provided by legislation. The Court’s right to pass judgment on the constitutionality of laws was declared through an act of judicial activism. Marbury v. Madison, the 1803 case in which the Supreme Court claimed for itself the power known as “judicial review,” has been settled law for over 200 years. But the fact that the precedent has been in place for a long time is not a barrier to overturning said law. Just look at Roe v. Wade—settled law for nearly 50 years.

Abolish Judicial Review?

So, what would the world look like with a diminished Supreme Court? Well, without judicial review, the emphasis would return to the democratically elected legislature. If the legislature were to promulgate a federal law, it could only be undone legislatively—not by judicial fiat.

Now, you might be concerned that the system of checks and balances between the courts and the legislative branch is there to protect minorities against the tyranny of the majority, as the federalists are thought to have intended. But in practice, there are but a small minority of cases in which the Supreme Court has protected the rights of vulnerable groups. Most often, it protects an elite minority.

Harvard Professor Niko Bowie, who testified last summer at Biden’s Commission on Court Reform, argues that historically, when there’s been a disagreement between the court and the legislature regarding the constitutionality of a law, the court has ruled in a way that’s bad for populist rights. Listen to this back and forth between Bowie and conservative jurist Ilan Wurman, who also spoke at Biden’s Supreme Court hearings:

Wurman

Even if a wealth tax is unconstitutional at the national level, I don’t think it would be unconstitutional at the state level. Let’s say the ACA is unconstitutional. … I’m not saying that it is. … But Romneycare certainly was constitutional. So you want 390 million Americans to be able to govern themselves. But I think a lot of what the Supreme Court does is it stops Congress from doing things, that imposes a uniform rule among the states. The alternative would be: California can go its way, can have a wealth tax, can have a carbon tax, can do Romneycare or Newsomecare, or whatever it would be in California, and let Texas do something different, and God forbid there’d be some diversity. So why isn’t that like a perfectly reasonable vision of the Court’s role: keeping Congress in check and letting the states do things?

Niko Bowie

Yeah, so let’s look at the history of the Court’s relationship to Congress. When the Court has said, let’s let the states do this, the first time was, hmm, we think the states should decide whether slavery should exist. Congress has no role in policing slavery. Hmm. We think the states should decide whether lynching is punished. We don’t need Congress or a federal anti-lynching law to do this. Hmm. We think the states should decide whether an anti-discrimination law should pass. We shouldn’t have a federal anti-discrimination law. Hmm. We think the states should decide whether there’s a wealth tax. We shouldn’t have a federal wealth tax. Hmm. We think the states should decide whether there’s a child labor law. We shouldn’t have a federal child labor law. Hmm. And you can go on. Whenever the Supreme Court says the states should do it, it’s to protect the interests of …


In an article covering Bowie’s remarks at Biden’s hearing on the Supreme Court, Joel Mathis wrote:

Over the last two centuries, the court has used its power to strike down or narrow federal laws that limited the spread of slavery, discouraged child labor, protected voting rights, and restricted the role of big money in politics. Defenders of the Supreme Court’s power say justices can protect political minorities from congressional attempts to step on their rights, but Bowie said that theory has rarely worked in practice. “The court has been silent at best when Congress and the president have violently dispossessed Native tribes, excluded Chinese immigrants, persecuted political dissidents, withheld civil rights from U.S. citizens in territories, and banned Muslim refugees,” [Bowie] said. Combined with the lifetime terms for justices, he said, “the political choices available to us as a country depend not on our collective will, but on the will of people who hold their offices until they resign or die. This is precisely what the Declaration of Independence protested.”

And even if, for some reason, you don’t care about all those pretty severe infringements on American freedom, it is precisely because of judicial review that Democrats have been able to disguise their complete and total failure to legislate. They’ve been delegating lawmaking to the court while using Supreme Court appointments as a cudgel to ensure voters continue to “Vote Blue No Matter Who” even though the party rarely accomplishes anything.

Do-Nothing Democrats

Case in point: the lack of abortion legislation. Despite Roe being having been decided in 1973, and despite overwhelming public support for at least some degree of abortion access, Democrats have failed to codify Roe.

Barack Obama wrote a two-page missive last week on how terrible it would be for Roe to be overturned. But nowhere in his self-righteous ode does he acknowledge his own role in the crisis. In 2007, he claimed that the first thing he’d do as President would be to sign the Freedom of Choice Act, codifying Roe. By 2009, he’d changed his tune, saying the bill was “not my highest legislative priority.”

Joe Biden also ran on codifying Roe. But he has firmly resisted getting rid of the filibuster so that Democrats could actually do so with their narrow Senate majority.

As David Sirota wrote recently:

There is already legislation introduced in Congress to do this. It is called the Women’s Health Protection Act, it already has 48 sponsors in the Senate, and its core precepts are wildly popular according to survey data.

And yet Democrats do nothing. Biden was recently asked if he would consider eliminating the filibuster in the face of this Roe opinion. His answer? “I’m not prepared to make those judgments now.”

The only thing Democrats do seem good at is making money off of abortion. Last week, Biden had the audacity to issue a statement that was little more than a “get out the vote”/fundraising email. He wrote:

If the court does overturn Roe, it will fall on our nation’s officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.

One Biden advisor even told reporter MJ Lee that “this will have an extraordinary galvanizing force with some of the very Americans who don’t always turn out or weren’t really looking to the midterms yet.”

Some leftists are starting to believe that Democrats want abortion rights hanging in the wind so they can continue to pressure disaffected voters to the polls. But even if you aren’t that cynical, here’s what we do know: women’s rights are hanging in the balance because Democratic politicians, ignoring populist majorities behind them, have been afraid of the so-called culture wars. They’ve chosen to timidly court conservative minorities instead of pass laws that majorities want. Hillary Clinton picked “anti-abortion” Tim Kaine as her VP—a move that inspired exactly zero Americans not already committed to vote for Clinton to head to the polls. Nancy Pelosi’s daughter Christine Pelosi spent the night of the leak last week blaming the left for the erosion of abortion rights. But Nancy Pelosi herself argued in 2017 that focusing on abortion access was hurting Demorats. Pelosi has also seemingly worked overtime to make the Democratic Party a safe space for the anti-Roe minority. As Irami Osei-Frimpong argued, “The Dems have spent my entire life convincing Americans that the only thing they can do is appoint judges to do the governing for them.” Now they’ve failed at that. They’re looking to blame leftists and Susan Sarandon, but they need to take a good hard look in the mirror.

Marianne Williamson put it best: “I don’t know which is worse, the way Republicans abuse power or the way Democrats refuse to use it when they have it.” I think it’s a toss up, Marianne. But I have a good idea why growing numbers of Americans are identifying as Independent, and looking for a third party.

The solution to judicial activism, whether by the right or the left, may be to limit the power of the Supreme Court—power it arguably only has because of judicial activism. The Founding Fathers wanted checks and balances to preserve the rights of economic elites, not persecuted minorities, and the Court has been extremely effective in preserving the rights of elites. I would argue that 200 years of that is enough.

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