Women’s constitutional right to decide whether to bear children appears to be hanging by a thread. At yesterday’s oral argument in the case of Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s Republican-appointed justices displayed an eagerness to overturn Roe v. Wade, the legal precedent that prevents states from banning abortion. This is no surprise—the conservative legal movement fought a decades-long political battle to achieve just this objective. The case, which will decide the constitutionality of Mississippi’s ban on abortions after 15 weeks of pregnancy, offers a clear opportunity to do so.
I should caution that the back-and-forth of arguments before the Court can be deceiving. The Obama administration’s difficulty arguing its case in favor of the Affordable Care Act led observers to declare it would be struck down—that didn’t happen. An oral argument can be a preview of how the justices will rule, but it is not always, and so the decision in this case remains unknown until it is handed down. That said, conservative activists had not spent decades attempting to strike down Obamacare. Ending legal abortion in America, though, has long been the main goal of the conservative legal movement.
Justice Amy Coney Barrett, a Trump appointee, compared the “infringement on bodily autonomy” of forcing a woman to carry to term to vaccine mandates, an argument foiled by the obvious reality that pregnancy and abortion are not contagious. Justice Samuel Alito implicitly compared Roe to Plessy v. Ferguson, the decision holding racial segregation constitutional, as he suggested that cases that had been wrongly decided should be reversed without regard for precedent. Given that Roe and Plessy take opposite views of states’ authority to deny basic liberties to their residents, it was a strange comparison. Justice Brett Kavanaugh, another Trump appointee, made Alito’s invocation of Plessy even more ironic when he offered that the problem was that the Court had been “forced” to “pick sides on the most contentious social debate in American life,” rather than leaving it “to the people, to the states, or to Congress.” Plessy applied this argument to racial segregation, arguing that the states were “at liberty to act with reference to the established usages, customs, and traditions of the people.” Black voters in Louisiana were soon entirely disenfranchised; they were not among “the people” who could determine what those customs and traditions were.
The flowery paeans to democracy began early in the oral argument. Mississippi Solicitor General Scott G. Stewart, defending his state’s strict ban on abortion, began by declaring that precedents guaranteeing abortion rights had “damaged the democratic process” and that “when an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people.”
Perhaps, at first glance, that seems fair. But even setting aside the question of whether people’s fundamental constitutional rights should be settled by popularity contests, and the fact that the Court has previously ruled that the Constitution does take sides on the question of whether women can be forced by the state to carry a pregnancy to term, this argument for democracy is offered in bad faith. Religious freedom is also a contentious issue, and the Roberts Court has shown little modesty in settling such debates as it pleases, in accordance with the customs and traditions of its conservative majority. Furthermore, the Mississippi law’s proponents understand that they have the tools to limit any popular backlash to overturning Roe, and the justices know this because they helped forge those tools themselves.
In 2019, the Supreme Court continued its long streak of antidemocratic rulings, holding that partisan gerrymandering was not unconstitutional. Given the racial polarization of American politics, it is a simple matter for Republican legislators to draw districts that systematically disenfranchise Black voters, and then insist they were discriminating on the basis of party, not race. Plessy is more popularly known, but perhaps the 1898 decision in Williams v. Mississippi is more germane here. In Williams, the Court held that infamous devices intended to disenfranchise Black voters, such as the poll tax, grandfather clause, and literacy test, did “not on their face discriminate between the races.” This case rarely gets included when justices list the Court’s more noxious rulings, not only because it is less well known, but because most of the Republican appointees would rather not acknowledge that they have explicitly echoed its reasoning.
The Roberts Court’s jurisprudence has set off a bipartisan race to the bottom, with Democrats and Republicans seeking to rig maps to their advantage in states they control, insulating themselves from popular discontent. This is grim but rational: Under this system, legislative and congressional majorities rest on the ability of lawmakers to disempower their own constituents.
Republicans control more states, however, and geographic polarization allows them to easily draw maps to maintain their power in state legislatures and federal House districts. Should they lose a statewide election, such as a governorship, they can simply strip the Democratic governor of key powers and then wait until a Republican is back in office. If a state referendum goes the wrong way, Republicans can rely on the legislature, or the courts, to nullify it, as they have with Florida’s poll tax (a device explicitly barred by constitutional amendment) or marijuana legalization in South Dakota.
The Court’s gutting of the Voting Rights Act’s preclearance powers means lawmakers are entitled to impose burdens on voting to narrow the electorate where gerrymandering fails. The people can do less and less to ensure that lawmakers’ decisions reflect their preferences, unless the people are consistent Republican voters. Nor are states given a free hand when implementing policies they believe would strengthen democracy—those are not among the contentious issues the Court’s conservative majority feels should be left to the people. If Democrats wish to compete in this environment, they need simply alter their stances to reflect the views of voters whose ballots actually count.
To paraphrase Justice Ruth Bader Ginsburg—whose decision not to retire under President Barack Obama was an important factor in this outcome—the Court has turned democracy on its head, allowing lawmakers to choose their electorate, rather than the electorate choosing its lawmakers. Democracy, for our august justices, is just another way of saying: Heads we win, tails you lose. Democrats in Congress have failed to use their fragile trifecta to change this system, and Republicans believe it ensures that the correct people will rule. And so Americans will be governed by it for the foreseeable future.
If the Republican-appointed justices—only one of whom was appointed by a president who originally won the popular vote—sound somewhat cavalier about stripping half the country’s population of a fundamental constitutional right, well, they have good reason to be confident. They have engineered a system that allows “the people,” whose will they invoke with venomous cynicism, little power to respond.