The Supreme Court did two things yesterday when it overturned previous cases establishing a women’s federal right to an abortion. First and foremost, it hurt women. More now will die of illegal abortions or complicated pregnancies and lack of care than if the law stood. More will be forced into birthing children conceived by rape or incest, or via abuse from their partners. The Court hurt women economically, too. Recent studies have found abortion rights increase the lifetime earnings of women by not forcing them to stay home. The list goes on.
In its Friday ruling for Dobbs v Jackson Women’s Health Center, the Court also realized its full unmooring from the popular majority of Americans. There are several ways to make the point that justices today are less accountable and democratically legitimate than in the past. One is that the Senators who appointed five of the current six conservative justices represented states worth a minority of the population at the time of the corresponding confirmation votes. Another is that three of them were nominated by a president who lost the popular vote.
We can also note that polls show the ruling is dramatically unpopular:
A Washington Post-ABC News poll from April found only 28% of adults nationwide wanted the Court to overturn Roe v Wade. Nearly twice as many (54%) wanted it to uphold its past precedent and preserve a federal right to abortions.
A Gallup poll conducted after the Dobbs decision was leaked found the highest share of Americans in 20 years call themselves “pro-choice” (55%) and that overall opinion flipped since their last survey in 2021 from being opposed to legal abortions in most cases to being for it (53%).
Then, there’s state opinion. An analysis by Chris Warshaw and Jake Grumbach, two political scientists, published in the Post’s Monkey Cage blog this morning finds that a majority of the public in 40 states supports legal abortion in all or most scenarios. I published similar numbers for The Economist when the Dobbs decision first leaked, finding majorities in 12 states were opposed.
More than for past out-of-step rulings — such as Wednesday’s establishing a citizen’s right to carry a gun for self-defense — I have seen a lot of pushback to the Court for this disconnect between what the people want and what they got. And that is more than fair. The simple fact of the demise of Roe is that it was caused both by a system for electing the president that gave power to the candidate who lost by 3m votes; and by a Constitution which delegated advice and consent over justices to a Senate which has been captured by the numerical minority.
Of course, we do not want a Court that is subject to the whims of the crowd. But we do want one that is accountable, as the Founders intended, to the other branches of government. And there are some things Americans can do to rein in the Court. Congress could increase the number of justices (picking a prime number would be cool — say, 13) and impeach those jurors who obfuscated their true feelings about Roe to get confirmed
But those “fixes” will likely only have minor or short-term effects. Eventually, the median justice will sway back to the one which is favored by a bare majority of Senators and the median electoral college voter. The real reason we have Dobbs — and why the Court may soon strike down same-sex marriage and the right to contraception, per its decision yesterday — is not because conservative activists “won” some fight for rights, but because the people who set up our electoral institutions nearly 250 years ago did not control for the possibility that one political faction would be able to control the two elected branches of government simultaneously with minorities of the popular vote, thereby shaping the judicial branch in their image.
Americans have been indoctrinated against a so-called “tyranny of the majority” for some time now. Folk history in civics classes is largely to blame, but of course not solely responsible for the collective paranoia about letting the majority rule as the Framers actually intended. The Supreme Court’s overturning of Roe shows that the Constitution actually creates a tyranny of the minority. By definition, that will harm a lot more people.
The Supreme Court rescinded - took away - Constitutional rights. This is unprecedented.
The only way to assure women's rights, gay rights, any rights at this point, is by federal legislation. This means we need to control the House and Senate.
What we must do:
1. Become acutely aware of the field. There are Senate seats in the toss-up column for this November. They are Senator Warnock, Georgia, Senator Mark Kelly, Arizona, Senator Cortez Masto, S Nevada, Senator Ron Johnson, Wisconsin, and the open seat in Pennsylvania. We must win them . As of now Democrats are in control of 36 state legislative chambers. Republicans 62. We must have control of the state houses in New Hampshire, Pennsylvania, North Carolina, Georgia, Michigan, Wisconsin, Arizona and Nevada. If we don't, we lose 2024. We must also have Democratic Secretaries of State and state Supreme Court justices In these battleground states. If we don't, we lose 2024. For information on the House seats, see https://www.cookpolitical.com/ratings/house-race-ratings.
2. We must get out the vote this November among young people, suburban women, urban people, white people, people of color in each of these states.
3. Support the states that are taking independent actions to protect women's rights. They are so far Massachusetts, Virginia, California.
The Supreme Court rescinded - took away - Constitutional rights. This is unprecedented.
The only way to assure women's rights, gay rights, any rights at this point, is by federal legislation. This means we need to control the House and Senate.
What we must do:
1. Become acutely aware of the field. There are Senate seats in the toss-up column for this November. They are Senator Warnock, Georgia, Senator Mark Kelly, Arizona, Senator Cortez Masto, S Nevada, Senator Ron Johnson, Wisconsin, and the open seat in Pennsylvania. We must win them . As of now Democrats are in control of 36 state legislative chambers. Republicans 62. We must have control of the state houses in New Hampshire, Pennsylvania, North Carolina, Georgia, Michigan, Wisconsin, Arizona and Nevada. If we don't, we lose 2024. We must also have Democratic Secretaries of State and state Supreme Court justices In these battleground states. If we don't, we lose 2024. For information on the House seats, see https://www.cookpolitical.com/ratings/house-race-ratings.
2. We must get out the vote this November among young people, suburban women, urban people, white people, people of color in each of these states.
3. Support the states that are taking independent actions to protect women's rights. They are so far Massachusetts, Virginia, California.
4. Have a Plan B.