"An Anti-Majoritarian Check" - Greenwald Exposes The Radical Fallacies Of SCOTUS Hyperbole
This by-now-reflexive discourse about the Supreme Court ignores its core function...an anti-majoritarian check against the excesses of majoritarian sentiment...
The sole purpose of Roe was to deny citizens the right to enact the anti-abortion laws, no matter how much popular support they commanded.
This extreme confusion embedded in heated debates over the Supreme Court was perhaps most vividly illustrated last night by Waleed Shahid, the popular left-wing activist, current spokesman for the left-wing group Justice Democrats, and previously a top aide and advisor to Squad members including Rep. Alexandria Ocasio-Cortez. Shahid — who, needless to say, supports Roe — posted a quote from Abraham Lincoln's first inaugural address, in 1861, which Shahid evidently believes supports his view that Roe must be upheld.
But the quote from Lincoln — warning that the Court must not become the primary institution that decides controversial political questions — does not support Roe at all; indeed, Lincoln's argument is the one most often cited in favor of overruling Roe. In fact, Lincoln's argument is the primary one on which Alito relied in the draft opinion to justify overruling Roe: namely, that democracy will be imperiled, and the people will cease to be their own rulers, if the Supreme Court, rather than the legislative branches, ends up deciding hot-button political questions such as abortion about which the Constitution is silent. Here's the version of the Lincoln pro-democracy quote, complete with bolded words, that Shahid posted, apparently in the belief that it somehow supports upholding Roe:
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It is just inexplicable to cite this Lincoln quote as a defense of Roe. Just look at what Lincoln said: “if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, [then] the people will have ceased to be their own rulers.” That is exactly the argument that has been made by pro-life activists for years against Roe, and it perfectly tracks Alito's primary view as defended in his draft opinion.
Alito's decision, if it becomes the Court's ruling, would not itself ban abortions. It would instead lift the judicial prohibition on the ability of states to enact laws restricting or banning abortions. In other words, it would take this highly controversial question of abortion and remove it from the Court's purview and restore it to federal and state legislatures to decide it. One cannot defend Roe by invoking the values of democracy or majoritarian will. Roe was the classic case of a Supreme Court ruling that denied the right of majorities to decide what laws should govern their lives and their society.
One can defend Roe only by explicitly defending anti-majoritarian and anti-democratic values: namely, that the abortion question should be decided by a panel of unelected judges, not by the people or their elected representatives. The defense of democracy invoked by Lincoln, and championed by Shahid, can be used only to advocate that this abortion debate should be returned to the democratic processes, which is precisely what Alito argued (emphasis added):
Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman's right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.
For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade….At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision Court represented the “exercise of raw judicial power,” 410 U. S., at 222….
Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences…..It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U.S. at 979 (Scalia, J, concurring in the judgment in part and dissenting in part). That is what tho Constitution and the rule of law demand.
Rhetoric that heralds the values of democracy and warns of the tyranny of “unelected judges” and the like is not a rational or viable way to defend Roe. That abortion rights should be decided democratically rather than by a secret tribunal of "unelected men in robes" is and always has been the anti-Roe argument. The right of the people to decide, rather than judges, is the primary value which Alito repeatedly invokes in defending the overruling of Roe and once again empowering citizens, through their elected representatives, to make these decisions.
The only way Roe can be defended is through an explicit appeal to the virtues of the anti-democratic and anti-majoritarian principles enshrined in the Constitution: namely, that because the Constitution guarantees the right to have an abortion (though a more generalized right of privacy), then majorities are stripped of the power to enact laws restricting it. Few people like to admit that their preferred views depend upon a denial of the rights of the majority to decide, or that their position is steeped in anti-democratic values. But there is and always has been a crucial role for such values in the proper functioning of the United States and especially the protection of minority rights. If you want to rant about the supremacy and sanctity of democracy and the evils of "unelected judges,” then you will necessarily end up on the side of Justice Alito and the other four justices who appear ready to overrule Roe.
Anti-Roe judges are the ones who believe that abortion rights should be determined through majority will and the democratic process. Roe itself was the ultimate denial, the negation, of unrestrained democracy and majoritarian will. As in all cases, whether Roe's anti-democratic ruling was an affirmation of fundamental rights or a form of judicial tyranny depends solely on whether one believes that the Constitution bars the enactment of laws which restrict abortion or whether it is silent on that question. But as distasteful as it might be to some, the only way to defend Roe is to acknowledge that your view is that the will of the majority is irrelevant to this conflict, that elected representatives have no power to decide these questions, and that all debates about abortion must be entrusted solely to unelected judges to authoritatively decide them without regard to what majorities believe or want. |
