Roe v Wade and the end of majority rule in America | #195 – May 8, 2022
Overturning Roe v Wade is the result of a 50-year crusade of Christian conservatism — and right-wing minoritarianism
This week, a draft of the Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization was leaked to the media. In it, Justice Samuel Alito writes for the majority of the Court that the Constitution does not protect a woman’s right to an abortion, despite its previous rulings, and that the question will now be left up to the states.
Overturning Roe v Wade is, of course, a long-term goal of religious Christians. It is also the source of the most intense energy on the American right. In fact, religion is the best predictor of attitudes on abortion. Whether you are an Evangelical, Catholic, something else or nothing at all is a more powerful indicator of how you feel about Roe than your sex, education, race, geography — or any combination of them.
But I think the five-decade right-wing crusade against Roe can also be seen through the lens of minority rule.
Polls consistently show a 60-70% of Americans are opposed to overturning the abortion-rights case. And while roughly 60% also support a ban on abortions after around 15 weeks of pregnancy — with exceptions for rape, incest, and a threat to the life of the mother — only 15-20% want to ban abortions altogether. Overturning Roe outright would open the door for states to do just that.
To understand how we got here, and what to do next, it may help to go back some ways in time.
The “moral” “majority”
Recall that the modern religious right was born when evangelical pastors like Jerry Falwell and conservative activists such as Paul Weyrich figured out they could juice Republican support among southern whites by playing on their fears of racial integration. They used a political campaign for the rights of the “moral majority” as their cover, but the roots of the movement revealed their ulterior motivations.
Fallwell and Weyrich incorporated coalitions that had previously been aggravated and animated by school integration and the civil rights movement were into a singular religious crusade — covering the racism of a religious right opposed to equality of the races under the thin veil of “religious freedom.” And thus the religious right was born.
The electoral success of that movement 1980s set in motion the party’s pivot to the full-throated minority rule that we observe today. But a few other things had to happen before the right could pack the court with unpopular justices opposed by the majority.
While Falwell and Weyrich were remaking the right, the Democrats were becoming an increasingly socially progressive party allied closer with the values of the international left. Journalists, professors, and the intelligentsia united under the same banner as feminists, gay rights activists, and African Americans. That set them up to be very electorally successful in the cities. But everywhere else, where the religious right was concentrated, the party began to lose ground. The “moral majority” was opposed to all aspects of the new Democratic coalition.
The right gets a boost
These dual trends kicked off an era of intensifying geographic polarization that has persisted from the 1980s to today. And while, among other things, immigration, population growth, the knowledge economy, and rising levels of college education have preserved the Democrats’ popular majorities, the biases of America’s electoral institutions have grown severe enough to let their opponents consistently wield power with significant minorities of the popular vote.
Here are the relevant statistics, excerpted from the conclusion of STRENGTH IN NUMBERS:
In the 2020 election, Republicans could have won the presidency while losing the popular vote for president by four percentage points — upwards of 6–7 million votes, depending on overall turnout. The Republican Party has a slightly smaller structural advantage in the US House, where it could have won a majority of seats with a three-point deficit in the popular vote. And in the US Senate, meanwhile, Republicans have not won the popular vote since the three election cycles leading up to 1988, yet they have controlled the majority of seats in the chamber after seven of twelve congressional election cycles.
In such a country, the minority of voters can routinely overpower the “will of the people” in the halls of government. …
In 2016, these severe geographic biases meant Republicans were able to win control of the Senate despite losing the cumulative popular vote for seats by six percentage points. And Donald Trump won the presidency thanks to just 80,000 votes in states that were key to their Electoral College strategy — despite losing nationally by 3 million voters.
The Senate and Presidency are all Republicans needed to install 3 justices with lifetime tenure to the only branch of government that can unilaterally override the will of the majority. When Donald Trump assumed office in 2017, he nominated Neil Gorsuch to fill the Supreme Court seat left open by Antonin Scalia when he died in 2016.
Trump didn’t originally have the votes to confirm Gorsuch in the Senate, which at the time required 60 votes for cloture on Supreme Court nominations. But because the Senate majority sets its own rules, Republicans were able to do away with the judicial filibuster and confirm Gorsuch with simple votes of the majority of members. They did the same for Brett Kavanaugh and Amy Coney Barrett.
The reality of Dobbs is that a group of 6 justices, 3 of whom were confirmed while the US government was under the rule of a numerical minority, are about to overturn the rights of 70 million women.
The leaked draft of Justice Samuel Alito’s opinion reflects the hostility of devout white Evangelical Christians and far-right social conservatives to being checked by popular majorities. In his opinion Alito argues the question of abortion rights should be left up to the states, letting the issue resolve itself through 51 separate decentralized democratic processes. And yet, if the people had their way, Roe would stay in place as is. The striking down thus doesn’t represent democratization but a step away from the will of the people — and toward that of the minority in favor.
So while the overturning of Roe v Wade is a victory for religious conservatives, it is also a win for a shrinking minority of voters.
The consequences could not be direr. In terms of Americans’ rights, Alito’s draft opinion in Dobbs mentions the Court would be open to hearing challenges on same-sex marriage, sodomy, and interracial marriage. Other rights may also be up for debate, depending on how they are interpreted and whether or not they have “deep roots in history,” to quote Alito. The natural interpretation is that no right that is not codified in the federal or relevant state’s constitution is up for debate.
But the harsh and partisan minority rule of the Supreme Court will also delegitimize it. To Democrats, it is a tool of the evangelical Republican minority to impose its policies over the objection of the numerical majority. Just the potential rolling back of rights by an illegitimate court has already led to scattered violence against partisan opponents. But it could also give way to even worse demagogues.
The End of History and the Last
What happens next will shape the course of American politics for the foreseeable future.
Just as the Republicans became more religious in the 1980s, so too have they recently become openly hostile to the rule of the majority. Arkansas senator Tom Cotton has argued that Washington DC does not deserve to be a state because it is not full of “working-class” voters like Wyoming is, for example. And Utah Senator Mike Lee infamously proclaimed in 2020 that America is “not a democracy” and that “power is not found in mere majorities, but in carefully balanced power."
(NB: Lee apparently believes this quite earnestly — as shown by his campaign to have “a very small handful of states have their legislatures appoint alternative slates of delegates” to create a path for Trump to steal the presidential election in 2020. Now, candidates for secretaries of state and governors are explicitly running on the same rhetoric.)
This all makes dead clear that the religious right’s campaign to overturn Roe v Wade is part and parcel of the rural white backlash against the mostly-secular majorities who have come to dominate the country from cities. The political right may think: We get to legislate from the Court because we have won power the way the Constitution intended; Democrats do not get to because they exercise power only through rank democracy and vote-rigging.
As Roe fades from view, it is possible that this right-wing belief in the will of the (white, Christian) minority will become the central animating force of the right. After all, as geographic polarization worsens, the Republican Party only gains more incentive to run as a minoritarian faction. We are likely seeing only the beginning of what they can accomplish with minority rule over Congress, the Presidency, and the Supreme Court.
Think about this to its logical extreme. Taking each state’s partisan lean after the 2020 elections, Republicans can win control of 60 Senate seats even if they lose the 3-cycle cumulative popular vote by one percentage point. Anything greater and they win a filibuster-proof majority of the Senate — and because of geographic biases elsewhere, likely control every other branch of the federal government, too. They could enact any law they want with judicial impunity.
Once electoral accountability has gone, what is left? More and more people will soon begin to question if we are really a democracy — or, if Mr Lee prefers, a republic — at all. When the majority cannot get what it wants out of government, they have reason enough to wonder.
Talk to you all next week. More below the fold.
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What I wrote this week
This numbers-heavy Economist story on abortion is pegged to the Dobbs leak. We look at the counties that could lose the most access to abortion clinics, public opinion on abortion over time, and the demographic correlates of those attitudes. The link at the top of the article, on religion v other traits, points here too.
We also did some fancy statistical modeling to see which states have popular majorities for overturning Roe or establishing 15-week abortion bans. The results: “adults in 38 states and the District of Columbia support either unrestricted access to abortion or bans only on late-term procedures. That leaves 12 where a majority are opposed. In no state does a majority of adults favor making abortion illegal in all scenarios.”
What I’m reading
I don’t have any recommendations to share this week. I’ve been having trouble recently with saving articles for later, which is how I usually populate this section of the newsletter. If anyone has recommendations for their favorite app or extension to do this, I’m all ears. I’ve heard that Instapaper is good?
That’s it for this week. Thanks very much for reading. If you have any feedback, you can reach me at this address (or just respond directly to this email if you’re reading in your inbox). And if you’ve read this far please consider a paid subscription to support the blog.
I wonder if there will be two different "countries" in the U.S., one with states that have social rights and one with states where there are limited social rights. Our economy will still be linked, but states would be radically different. That might not be enough for conservatives, McConnell said it's possible that Congress could ban abortion federally. So much for "States' rights". If this is the direction we're headed, tyranny of the minority will become the norm, and eventually we'll reach a breaking point for the majority. I don't know what that means...
Thanks, Elliott. A related question is how did the Democrats become so lame? It was in 1983 that Congressman Tony Coelho convinced the Democratic Party to go after business funding, and he succeeded. What events caused the Democratic Party to become ineffectual? What can change that flacidity to strength? And more immediately, do you have your passports up to date? To what countries are people going to flee?