UNDEMOCRATIC COURT IS AS IT SHOULD BE

Attacking the American Supreme Court after leaked documents showed a draft opinion overturning Roe v. Wade, which has guaranteed federal constitutional protections for abortion rights, is counterproductive. Thousands of protesters who flocked to the court and chanted “fascist scum have got to go,” and the chorus of online voices questioning the legitimacy of the court miss the point and actually risk weakening abortion rights, assuming they want to the court to rule differently in the future. They also risk endangering unrelated minority rights.

The leaked document in question is an initial draft majority opinion written by Justice Samuel Alito. Alito repudiates Roe as “egregiously wrong from the start” and argues that Roe, as well as Planned Parenthood v. Casey (a 1992 court decision that maintained abortion rights), must be overruled. The leak is extraordinary — never before in the Supreme Court's history has a breach of this magnitude happened.

I'm a staunchly pro-abortion classical liberal, despite some ethical misgivings on abortions where the personhood of a fetus is debatable. Even if you believe that life begins at conception, forcing a woman to bear an unwanted pregnancy is a gross violation of her bodily autonomy. We don't force people to donate blood to save other people's lives, so how can we defend forcing a woman to donate her body, which is a much greater violation of bodily autonomy, to bring an unwanted fetus to term? A woman's body is her property — her body, her choice.

So I understand the anger that people have toward the Supreme Court right now. But even if this anger is justified, attacking the legitimacy of the Supreme Court, and the judiciary more generally, is not.

So far, a popular criticism is that, because Supreme Court judges are not elected, Alito's leaked decision is undemocratic and therefore indefensible. As an example, Guardian columnist Moira Donegan tweeted, “Can America call itself a democracy when policy-making power has been taken over by unelected courts?”

This is an ill-conceived and irresponsible stance, because the value of the judiciary is precisely its anti-democratic nature. Judicial political independence is essential to a durable legal system, wherein laws and rights are not open to complete reinvention with every election. This is not only essential to political stability (let's face it: pure democracy doesn't work), it naturally carves out protections for unpopular groups that would otherwise be left undefended against the caprices of pure majoritarian rule.

When these protections are used to defend minority groups — whether they be racial, religious, sexual or so on — there will always be people who howl that this is “anti-democratic.” And they can howl all they'd like, because the courts, as a political institution, ensure that these howls are not easily translatable into action.

So yes, the Supreme Court is anti-democratic — and that is as it should be.

But, ironically for those complaining of unelected judges making policy, the Supreme Court's looming decision on Roe rests on the idea of greater democracy. The leaked draft doesn't say that abortion should be banned, only that abortion rights should be democratically decided upon at the state level.

This expansion of democracy was indirectly acknowledged by

U.S. President Joe Biden in a news release, where he said that if Roe falls, “It will fall on our nation's elected 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.”

The problem here is: should protection of women's bodily autonomy be left up to voters? Many people, myself included, think that it should not and that it should instead be enshrined as a right which, much like other rights, is protected from democracy.

Whether you conceptualize the issue as one of individual rights, or as group rights, when those rights are stripped of federal protections, you end up with a patchwork system where, in blue states, the majority supports these rights, and, in red states, they do not.

So, in this framework, women seeking abortions in red states are an unprotected group — and, as with any unprotected group, particularly one that could be in the minority, the solution is not an appeal to greater democracy, but rather to undemocratic judicial protection against majoritarian power. To use an analogy, if you see a hole in a safety net, in this case the court overturning abortion rights, you find a way to sew the hole closed. You don't say, “Well, I guess we should just shred the whole thing.”

Undermining the Supreme Court in this case, especially on the grounds of it being “undemocratic,” not only misses the point of how the judiciary works, it is also counterproductive to protecting abortion rights in the future.

Of course, some people may say that the Supreme Court is not functioning the way it's supposed to — that it has become too politicized and too compromised. That's a legitimate criticism that hearkens to a larger problem where America's political institutions are being corroded by hyper-partisanship and cratering public trust.

But the solution is to restore dignity and some semblance of political independence to these institutions, so they can more stably protect important rights, such as abortion. Blasting the Supreme Court for being anti-democratic, and dragging it deeper into partisan muck, does the opposite.

IF YOU SEE A HOLE IN A SAFETY NET … YOU FIND A WAY TO SEW THE

HOLE CLOSED.

JEENAH MOON / REUTERS A woman holds up a sign Tuesday at a pro-abortion protest in New York City after the leak of a draft majority opinion written by Justice Samuel Alito preparing for the court to overturn the Roe v. Wade abortion rights decision.