Deepening the crisis of democracy
If the Supreme Court adopts the substance of Justice Samuel Alito Jr.’s draft ruling ending the constitutional right to abortion, the conservative majority’s radicalism will deepen the crisis of American democracy and further divide an already torn country.
There is an irony to this since, in principle, the Alito opinion is all about democracy. “It is time,” he writes, “to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The backlash against Alito’s approach is certainly a case of democracy in action. One of the unintended consequences would be the mobilization of pro-choice voters.
As long as abortion rights were seen as safely under the protection of Roe v. Wade and Planned Parenthood v. Casey, the issue of abortion mostly energized opponents, who voted again and again for Republicans promising to support antiRoe Supreme Court nominees.
But even as they harvested pro-life votes, conservatives engaged in a deceptive two-step. Except for Donald Trump, who said outright that “I will be appointing pro-life judges,” Republican politicians typically veiled their intentions behind abstract promises to back “strict constructionists” who wouldn’t “legislate from the bench.”
The justices themselves were equally cagey during their confirmation hearings. They never told us they thought Roe was wrongly decided. On the contrary, they spoke of their great respect for precedent, often at length. Whether you call this lying or not, it was certainly intentional misdirection and evasion. The last thing Trump’s appointees wanted was an extended debate on what overturning Roe would mean.
Even now, most Republican politicians don’t want to talk about Roe. That’s because they know how unpopular eviscerating abortion rights would be. So they focus instead on how horrible it is that a draft opinion leaked out of the court.
Conservatives hate it when anyone points out this truth: Three of the five reportedly anti-Roe justices were named by a president who lost the popular vote by 2.9 million and were confirmed by senators representing a minority of the nation’s population. Or that one of the vacancies was created by then-Senate Majority Leader Mitch McConnell’s blockade against Merrick Garland’s nomination in the final year of Barack Obama’s presidency. And then came McConnell’s reversal on the issue of letting an election happen before a justice was confirmed. He rushed Amy Coney Barrett’s nomination through in 2020 just days before the voters chose Joe Biden.
Knocking down Roe would engage the public in a way no other decision has; a Washington Post-ABC News poll conducted last month found that 54% of Americans support upholding Roe; only 28% said it should be overturned.
Thus the problem with the question posed by Alito’s defenders: Can it be anti-democratic to throw the abortion issue back to state legislatures? It’s not just that most people plainly disagree with ending
Roe. It’s also the extreme selectivity of the judicial right where democracy is concerned.
The court’s conservative majority has sabotaged all manner of democratically enacted laws: environmental and labor regulations, limits on the role of money in politics. The court’s decisions on voting rights and gerrymandering are anti-democratic on their face since they enable minority rule in the states that would be legislating on abortion. And the justices’ refusal to be candid about their designs on Roe matters. They prioritized their own confirmations over the imperative of a necessary national dialogue on the flaws and virtues of a controversial ruling they apparently intended to scrap.
On a personal level, I understand the surveys showing that many Americans have complicated views of abortion. Mine are complicated, too. Here’s what’s not complicated: The best path toward reducing the incidence of abortion is to offer far more support to women, both during pregnancy and as they raise their children.
By walking away from child credits, expanded child care and paid parental leave, our nation has signaled its indifference to their struggles.
But the abrupt fall of Roe, and the widespread criminalization of abortion, would be disastrous. It would endanger the lives of many women and place a particular burden on the least privileged among us.
Conservatives (as Chief Justice John G. Roberts Jr. may be telling his colleagues) should understand that a change as radical as the one Alito contemplates almost always blows up in its authors’ faces.