A THREAT TO DEMOCRACY
Dobbs v. Jackson
Yale legal scholar Alexander Bickel wrote in the 1960s that the Supreme Court was a "deviant institution in American democracy" because whenever it strikes down a law, "it exercises control, not in behalf of the prevailing majority, but against it."
The Court’s recent decision in Dobbs v. Jackson Women’s Health Organization overturned nearly 50 years of precedent and, as Senators Elizabeth Warren and Tina Smith argue in the New York Times, is “stripping away the constitutional right to an abortion and ruling that the government — not the person who is pregnant — will make the critical decision about whether to continue a pregnancy.”
A week earlier, the Supreme Court ruled that Americans have a broad right to arm themselves in public, striking down a New York law that placed strict limits on carrying guns outside the home. The Second Amendment, Justice Clarence Thomas wrote for the majority, protects “an individual’s right to carry a handgun for self-defense outside the home.”
Times columnist Charlie Savage suggested the abortion decision “could be the beginning of a sharp rightward shift on issues that directly touch intimate personal choices.” In their dissent in Dobbs, the three liberal justices wrote: “No one should be confident that this majority is done with its work.” They wrote that precedents being cast aside by the court — Roe v. Wade and Planned Parenthood v. Casey, a 1992 case that reaffirmed core parts of Roe — were part of the same “constitutional fabric” behind “settled freedoms involving bodily integrity, familial relationships and procreation.”
Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan said the ruling would force the Supreme Court to wade further into hotly contested moral and philosophical issues, listing a dozen examples of new questions. Those included whether and when a state must allow exceptions for a woman’s life and health, what the ruling would mean for in vitro fertilization and miscarriage management, whether a state could bar advertising for out-of-state abortions or helping women get to out-of-state clinics, and whether it could bar women from traveling out of state or receiving abortion medication mailed by out-of-state pharmacies.
A recent article in the UC Davis Law Review suggests that attacks on democracy worldwide have relied on the legal system “with leaders across a range of countries leading efforts to erode their liberal democratic orders.” The article cites legal scholars who have argued that “the United States is in many ways as vulnerable as many other countries to this wave of democratic erosion, and in fact that warning signs seen abroad are also present here.” The article continues:
· …across a range of countries, would-be authoritarians have fashioned courts into weapons for, rather than against, abusive constitutional change. In some cases, courts have upheld and thus legitimated regime actions that helped actors consolidate power, undermine the opposition, and tilt the electoral playing field heavily in their favor. In other cases, they have gone further and actively attacked democracy by, for example, banning opposition parties, eliminating presidential term limits, and repressing opposition-held institutions.
The United States in some ways would be a fertile ground for abusive judicial review: There is a history of judicial legitimacy on which authoritarians could draw, and the formal rules do not make the judiciary especially difficult to capture in comparative terms. At this point, the major impediment to review of this kind in the United States would seem to lie in informal norms, including norms of legal professionalism on the part of federal judges, and political norms of respect for the independence of the federal judiciary. But there are also signs that informal norms of this kind may be eroding.
Sources:
https://www.thirteen.org/wnet/supremecourt/democracy/history.html
https://www.nytimes.com/2022/06/25/opinion/elizabeth-warren-tina-smith-abortion-roe.html
https://www.nytimes.com/2022/06/25/us/supreme-court-abortion-contraception-same-sex-marriage.html
David Landau and Rosalind Dixon, “Abusive Judicial Review: Courts Against Democracy,” UC Davis Law Review, vol 53, 1313, 2020.