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The Supreme Court Ignores the Will of the Public
The Democracy Dispatch, Edition 46
Welcome back to the Equal Citizens Substack. This week, it’s just me, Kate. We have another, longer edition coming very soon (spoiler alert, it will be a gerrymandering roundup). But before we send that out, I wanted to share a few words about democracy, the Supreme Court, and the fight over abortion and reproductive justice.
Last Monday night, a leaked draft opinion showed that a majority of the Supreme Court is preparing to overturn Roe v. Wade, a landmark 1973 ruling that legalized abortions across the country. It’s hardly hyperbole to write that if this decision were to become official, it would completely upend existing protections for reproductive justice, women’s rights, and civil liberties. In 23 states, abortion would immediately become illegal. Millions would lose access to important, often life-saving healthcare. And the decision would lay the legal groundwork for further civil liberty and civil rights retrenchment, ranging from restrictions on basic birth control access to curtailing same-sex marriage protections. Such a move by the Supreme Court is highly unpopular. 69 percent of Americans want to uphold Roe v. Wade. Yet, if this draft is any indication, the Supreme Court intends to pay little heed to popular sentiment, ensuring girls born today have fewer rights than their mothers did.
It’s not a surprise that the Court is so out-of-step with public opinion. While the Court is, by design, the least small-d democratic institution of our federal government, it has been made more unrepresentative and radical over the past decades. Well before then-Senate Majority Leader Mitch McConnell’s infamous refusal to hold hearings on Merrick Garland’s appointment to the Supreme Court, a concerted and well funded campaign took place to develop far-right judicial ideologues and get them on the federal courts, all while doing whatever necessary to block countervailing liberal justices. Aided by anti-democratic biases in our electoral institutions, these Justices rose through the ranks, including to the Supreme Court. Case in point, five of the justices currently serving on the Supreme Court — Justices Roberts, Alito, Gorsuch, Kavanaugh, and Coney Barrett — were nominated by presidents who lost the popular vote and confirmed by members of a legislative body (the Senate) that is increasingly unrepresentative of the population. Recent appointees, such as Gorsuch, Kavanaugh, and Coney Barrett, were also the beneficiaries of an obscene amount of dark money — we still do not know its origins — in order to pressure the Senate to confirm them and convince the public that they were trustworthy jurists.
The draft opinion overturning Roe is therefore a reminder that our broken democratic institutions do not pose merely theoretical harm. They lead to constitutional interpretations that are opposed by the vast majority of Americans and cause disproportionate harm to marginalized populations.
At Equal Citizens, we know that the fight for democracy is deeply connected to the fights for issues across the board, including reproductive justice. I therefore want to highlight some recent work that shows the links between the fight for reproductive justice and democracy. I greatly benefited from reading these thoughtful pieces and I hope that you do as well. Please feel free to share them with friends and family.
The Brennan Center has a series of essays called “Abortion Rights Are Essential to Democracy.” The series was written in response to a Texas bill that placed bounties on people seeking abortions, and it is even more relevant now. Four essays in particular feel particularly salient. In “The Justices Have No Robes,” Madiba Dennie shows how reversing 50 years of precedent creates a crisis of law and exposes the holes in the Supreme Court’s legitimacy. Ian Vandewalker and Mira Ortegon illustrate how dark money and anti-democratic practices fuel anti-abortion policies and judicial nominations. Alicia Bannon highlights the importance of state courts in protecting reproductive rights and other civil liberties. And Elizabeth Hira (a dear friend of Equal Citizens) explains how reversing abortion rights is consistent with centuries of legal precedent designed to control women. For Elizabeth (and myself) abortion is a democracy issue because if the state denies women the right to control their own bodies, women are not equal citizens.
It was and still is a dark week. For democracy, reproductive rights, and civil liberties more generally, things feel bleak, especially as the Supreme Court is unelected and filled with lifetime appointees. While Congress has the power to codify the right to abortion and other rights, an unwillingness to get rid of any filibuster (another anti-democratic aspect of our institutions!) will almost certainly stymie the legislation. Of course, the draft opinion has renewed calls to expand the Supreme Court, which may be a worthwhile topic for a future Substack. For now, though, for those of us who care about the rights subject to repeal by the Supreme Court, the fight continues, whether that be protesting, advocating, financially helping each other, or otherwise.
Kate Travis is a fellow at Equal Citizens and a senior at Harvard studying History and Literature with a minor in Government and a citation in Spanish. When she is not writing about democracy, Kate spends her time running, drinking coffee, and watching bad rom-coms with her friends. Follow her on Twitter.