Six of the nine unelected judges sitting atop the least-democratic branch of the federal government just decided they will no longer have the final word on whether people who give birth (ahem) have the fundamental right to terminate their pregnancies.
Instead, our robed masters allowed that the question would be better answered by voters and their elected representatives on a state-by-state basis—just as they had done before 1973, going all the way back to America’s founding.
A day earlier, those same six unelected judges determined that elected officials may not violate their constituents’ constitutional right to “keep and bear arms” by imposing discriminatory rules on who may be permitted to carry a concealed weapon. Although 43 states have laws mandating law enforcement agencies “shall issue” such permits (with certain prudent exceptions), a few other states—notably New York and California—had “may issue” laws, which led to all manner of corruption, abuse, and inequity. The Court explained at length why the Second Amendment is not limited merely to self-defense at home.
The day before that, those same six unelected judges ruled that state officials may not discriminate on the basis of religion. If a state is going to subsidize private schools, as Maine and several other states do, it may not exclude certain schools simply because they are “sectarian.” It is not an “establishment of religion” to allow parents to use state scholarship money to send their kids to a religious school. The First Amendment, the Court explained patiently, protects the “free exercise” of religion.
As if to underscore the point, the six jurists this past Monday ruled that the First Amendment does not permit public school officials to prevent an employee from praying on the job.
On Thursday, the final day of the Supreme Court’s 2021-2022 term, those same six judges once again explained at length that they are not lawmakers—and neither are the lawyers and bureaucrats who populate the Environmental Protection Agency, which is a subsidiary of the executive branch headed by the president of the United States. If the EPA wants to regulate carbon emissions more than it already does, then it will need the express authorization of the people’s elected representatives in Congress.
Obviously, Our Democracy™ has never been in greater peril.
Our republic, on the other hand, is somewhat healthier today than it was before the U.S. Supreme Court handed down its decisions in Dobbs v. Jackson Women’s Health Organization, New York State Rifle and Pistol Association v. Bruen, Carson v. Makin, Kennedy v. Bremerton School District, and West Virginia v. Environmental Protection Agency.
In each of these cases, the Court either vindicated the rights of individuals or decided that the voters and their elected representatives are better judges of public policy than nine unelected judges.
How can our democratic republic possibly endure the people ruling themselves?
It can endure just fine, thank you very much. But if the Court keeps ruling this way, Our Democracy™ is in deep trouble.
When Legislatures Don’t Want to Do Their Jobs
Our Democracy™, as its boosters on the Left (too often abetted by the establishment Right) like to call it, is not really a “democracy” in the traditional sense of the word. It is certainly nothing like the republican form of government the Constitution guaranteed to the people and the several states. Instead, Our Democracy™ is anything that advances the policies progressives prefer this week. Until recently, the Supreme Court was a reliable institutional stamp of approval for the nation’s “evolving standards of decency,” which are only supposed to evolve one way.
Northwestern University Law professor Stephen B. Presser took note of this peculiar phenomenon 30 years ago in his book-length critique of the Supreme Court’s results-oriented jurisprudence, Recapturing the Constitution. “The judicial errors, the theoretical failings, and the media misunderstandings” of several decades’ worth of bad decisions, he wrote, “can be explained by an ideological commitment, particularly in the academy and the press, to an odd and strangely debased version of democracy.”
Odd and strangely debased encapsulates it nicely. Our Democracy™ is hardly “democracy” at all.
If the misunderstandings about the Court’s role have only festered over the past 30 years, they’ve metastasized since conservatives have assumed a majority.
Consider the responses to the EPA and abortion decisions. MSNBC this week published a column by Hayes Brown asserting without irony that the Supreme Court’s decisions deferring to the legislative prerogative is, in reality, a usurpation.
Writing about the EPA case, in which the Court said the agency needs congressional authorization to pursue its newest climate change rules (many existing rules already pass constitutional muster), Brown notes, “The fix should be one of the simplest available: Congress is well within its rights to pass a new law explicitly saying, ‘Yes, the EPA does have this authority.’”
The trouble, Brown writes, is that the Court invoked the major questions doctrine, which essentially means that Congress may not delegate its legislative powers to executive agencies.
Well, whose problem is that? If Congress wanted the EPA to decarbonize the economy, it should have said so explicitly. That would require members to put their careers on the line, however, and everyone knows the first rule of politics is claim credit and avoid blame.
“Conservatives have invested decades in shaping the Supreme Court and the federal judiciary writ large,” Brown asserts, “allowing them to use the courts to do what they can’t through legislation: dismantle the liberal state piece by piece.” Which is funny, considering that was the liberal strategy for the better part of half a century. What the legislatures would not do or would only do incrementally—abortion being a prime example—the courts would simply impose instead.
The result? Today, a sizable fraction of Americans believes—in all sincerity and without exaggeration—that the Court just gave industry carte blanche to pollute in West Virginia v. EPA and outlawed abortion in Dobbs.
A woman of my acquaintance, for example, told her children in the wake of the Dobbs ruling that the Court “just turned women into property.” Meantime, left-wing groups such as Jane’s Revenge vow to terrorize crisis pregnancy centers, which counsel women not to resort to abortion. “To our oppressors: If abortions aren’t safe, you’re not either.”
The reaction to the West Virginia case was arguably more hysterical. To hear prominent members of Congress tell it, the Court just eliminated all environmental protections and consigned the Earth to certain death.
U.S. Senator Elizabeth Warren (D-Mass.) tweeted on Thursday: “Our planet is on fire, and this extremist Supreme Court has destroyed the federal government’s ability to fight back.” Destroyed.
Meanwhile, U.S. Representative Rashida Tlaib (D-Mich.) complained, “Fascist SCOTUS guts the EPA’s ability to regulate carbon emissions, fight climate change.” That isn’t fascism, that’s the Court recognizing a breakdown in the separation of powers and telling the legislature that if they want the EPA to have greater leeway to regulate carbon emissions, they need to actually legislate for a change
“Democracy ends,” as one wag put it on social media, “if we throttle the power of an unelected government agency to make law.”
After decades of successfully using the courts to bypass tough legislative fights, progressives are appalled that their own tactics have been turned against them to restore constitutional government.
Our Democracy™ At Its Finest
If you repeat a word too much, it loses its meaning. “Liberal democracy” is like that. Its boosters simply assume everyone knows what it is, what it means, and why it’s good.
Accordingly, three law professors find a conspiracy against democracy in the Court’s decision to overturn Roe v. Wade. “It is not a coincidence that the court is making our democracy less democratic at the very moment it is returning the issue of abortion to the political process (in the name of democracy),” Leah Litman, Melissa Murray, and Kate Shaw argue in the Washington Post.
Justice Samuel Alito’s assurances in the majority opinion in Dobbs that the decision applies only to abortion “ring hollow,” they contend, “because this conservative court has made several decisions that have hobbled the infrastructure of democracy.” Therefore “true democratic deliberation on the abortion question will be elusive.”
They’re talking about gerrymandering, which has bedeviled parties and voters since the earliest days of the republic. The term is a portmanteau of Massachusetts Governor Elbridge Gerry and the salamander-like shape of a district on a map he approved while in office. Gerry was James Madison’s vice president and a member of the party whose descendants eventually gave rise to Elizabeth Warren and Rashida Tlaib. It just so happens that in some states, Republicans got better at gerrymandering than Democrats. And therein lies the real problem.
Republicans also favor voter ID laws and disfavor ballot harvesting, which allows third parties to collect ballots and deliver them to polling places, and anything that happens between point A and point B is none of your damn business.
Under Our Democracy™ precautions against fraud are anti-democratic while weakening precautions is pro-democracy.
So UCLA law professor Blake Emerson can argue with utmost seriousness at Slate following the West Virginia decision that “[t]ogether with the court’s elimination of the constitutional right to abortion, restriction of gun regulations, and expansion of religious authority, a clear picture is emerging: The people have less power now to create a safe and healthy society.”
“Instead,” he writes, “the court has consolidated power in its own hands to the benefit of factional economic and cultural interests.”
And if the Court had gone the other way and kept these contentious questions out of the political realm? That’s Our Democracy™ at its finest.
In another twist, the same people who pound their fists and say their sacred right to an abortion or contraception—a right famously discovered in the “penumbras, formed by emanations” within the Bill of Rights—should never be subject to a vote will, in the very next breath, cry, “Repeal the Second Amendment!”—which is in the actual Bill of Rights.
Americans could repeal the Second Amendment if they really, really wanted to. They could make abortion a constitutional right for real. The Constitution has a mechanism, but it isn’t easy to use. It takes two-thirds of the House and Senate to propose an amendment and three-quarters of the states to ratify it. If it were really true that something like 85 percent of the country supports abortion, then a constitutional amendment should be approved in record time.
Except it isn’t quite true. For good or ill, most Americans have no problem with abortion in the first three months of pregnancy. After that, they get squeamish. And while most Americans have no objection to abortion if the mother’s life is at risk, they recoil at the idea of using abortion as birth control in the eighth month.
Here’s the real reason a national abortion amendment won’t happen: for all of the banter about extremist Republicans and extremist Democrats, Americans are not extremists. But an abortion amendment would be.
An amendment enshrining abortion in the Constitution wouldn’t “codify” Roe v. Wade, as so many liberals would have it. Rather, it would almost certainly look like the state constitutional amendment California’s legislature just placed on the November ballot:
The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.
If there are caveats or exceptions in that language, they must be hidden deep within a penumbra or an emanation no ordinary textualist could possibly detect. It’s pretty cut-and-dried: In California, abortion will be on-demand and without limitation. Even Roe didn’t go that far.
In lieu of distorting the Constitution, the rest of us are left to find compromises that nobody likes and nobody is required to like, but they might be required to live with.
H. L. Mencken, writing nearly a century ago, observed that democracy tends to be “self-devouring.”
“One cannot observe [democracy] objectively without being impressed by its curious distrust of itself—its apparently ineradicable tendency to abandon its whole philosophy at the first sign of strain,” he wrote.
So it was in the wake of the war to “make the world safe for democracy.” So it is now, as the highest court in the land repeatedly and urgently exhorts the people’s representatives to stop punting their responsibilities to the courts and the executive branch and do their jobs.
That is why their “democracy” is imperiled. It’s almost as though, at their core, “democrats” aren’t really democrats and “democracy” and “progress” are just euphemisms for the exercise of raw power.