A recently leaked draft from the Supreme Court shows that the Justices have decided to overturn the longstanding case of Roe v. Wade. This will give states the ability to mandate whether or not abortions are legal within their borders. Some states have already passed and put in place laws that will “trigger” immediately once the case is overturned. Not only will this decision be incredibly damaging for women’s rights and health in the United States, but it is also a disgrace to America’s Democracy. This was only possible, because the Republican Party has disregarded the system of checks and balances in this country in order to push their agenda. This war on Democracy is being waged on two fronts: horizontally through their majority in the Supreme Court and vertically through gerrymandering and the elimination of voting rights.

Horizontally, each branch of the United States Government would ideally divide the powers between each other and then check each other, so no one branch abuses or oversteps its boundaries. However, since the Republicans lost in the Executive in the 2020 election and have a minority in the Legislative branch, that leaves them with one option: the Judicial. While everyone on the court is supposed to set aside their political beliefs and act neutrally, they still hold implicit biases that affect how they make decisions that normally coincide with the party that nominated them. The Republicans hold a 6-3 majority in the Supreme Court and have come to realize that if they cannot get their policies through the Legislative branch, which is the appropriate channel, they must try and push them through the courts. It shows that they have seen potential in the Supreme Court for a long time, because of their hypocrisy when it came time to fill the past few empty seats. Republicans refused to consider Obama’s nominee because the nomination was too close to the next election (within the year). However, after Ruth Bader Ginsburg’s death they pushed their nominee through, despite it being only two months from the next election. This is a very clear example of stealth authoritarianism, undermining democratic systems through legal mechanisms, according to Tom Ginsburg’s theory on Judicial Review. Even without winning the election, their unbeatable majority in the Supreme Court would allow them to easily challenge any legislature passed by Democrats, whether or not it is valid in the eyes of the people. They can also overturn long standing cases like Roe v. Wade, allowing the states they control to put bans on and criminalize abortion all together. 

Some may argue that the Supreme Court should be able to make this ruling because they need to be “faithful to what the Constitution actually said,” but this argument falls short for multiple reasons. First, several of the current Justices lied to Congress-saying that they considered Roe v. Wade to be super precedent despite the leak showing they now felt compelled enough to overturn it. This proves that they are putting their political views above their duties as non-partisan entities. Another, more nuanced, takedown of this point comes from admitting that the Constitution does not explicitly enumerate the right to an abortion in its texts, but that does not matter. The real issue is that The Constitution was not written with the rights of women in mind, as the authors did not view them as equals. It was written well before women even had the right to vote in the United States, so it is easy to see why things that pertain only to women would not be explicitly established in this country’s founding documents. The Supreme Court’s job is to protect the rights of the people in an unbiased and just manner, so they cannot base all of their decisions on what was exactly written in a 200 year old document, because the world changes with or without it.

The vertical checks on Republicans is another facet of Democracy that they are trying to escape. One would assume that if the majority of people do not agree with what the Republican Party is doing, they would vote them out of office. The issue, though, is that the party has been systematically taking away the public’s hold over them through gerrymandering. By taking away the ability for the other party to have any chance at electing someone, they are fundamentally violating one of the most basic rules in almost every definition of democracy: the need for a fair and competitive election process. This problem is even more damaging to democracy in America when the area you are gerrymandering has a majority preference for the other side. This can be seen with the problem as it relates to the Supreme Court leak as according to multiple studies that over half of the country does not support overturning Roe v. Wade. Even without considering the ethics of the abortion debate, Republicans are making America much less democratic through eliminating the will of the majority.

A counterpoint that one might bring up is that gerrymandering is a very old concept in the United States and both sides have done it, so why just single out the Republican Party? It is true, both sides try their hardest to rig the elections in their favor, but the Republican Party has historically been more likely to do it, gaining on average double the Amount of seats in the House of Representatives in 2012-2014. This is not their only effort towards eliminating vertical accountability either, as can be seen by their pushes to limit voting rights and access. Another basic rule of Democracies is that everyone should have the right to vote, but with things like voter ID laws and removing the ability to vote by mail they are not only doing the exact opposite of that, and also directly targeting minorities in the process. With these in mind, it is clear why Republicans are more harshly criticized. 

Republicans abandoned Democracy many years ago as they realized the best ways to pass their agenda in this country are through anti-democratic means. Overturning Roe v. Wade is just the beginning of their attempts at stealth authoritarianism via the Supreme Court. It is important to recognize what this looks like now, so Americans can understand the ramifications this could have later down the line.

References

Blake, A. (2020, September 21). Analysis | how the GOP is trying to justify its Supreme Court reversal. The Washington Post. Retrieved May 23, 2022, from https://www.washingtonpost.com/politics/2020/09/21/how-gop-is-trying-justify-its-supreme-court-reversal/

Board, T. E. (2022, May 5). Opinion | Did Supreme Court nominees lie to Congress? The Wall Street Journal. Retrieved May 23, 2022, from https://www.wsj.com/articles/did-supreme-court-nominees-lie-to-congress-neil-gorsuch-brett-kavanaugh-amy-coney-barrett-11651785479

Daley, D., Cobb, J., & Bethea, C. (2019, September 6). The secret files of the master of modern republican gerrymandering. The New Yorker. Retrieved May 23, 2022, from https://www.newyorker.com/news/news-desk/the-secret-files-of-the-master-of-modern-republican-gerrymandering

Guardian News and Media. (2021, December 27). Democracy under attack: How Republicans led the effort to make it harder to vote. The Guardian. Retrieved May 23, 2022, from https://www.theguardian.com/us-news/2021/dec/27/democracy-under-attack-trump-republicans

Huq, A. Z., & Ginsburg, T. (2017). How to lose a Constitutional Democracy. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.2901776

The impact of voter suppression on communities of color. Brennan Center for Justice. (2022, May 23). Retrieved May 23, 2022, from https://www.brennancenter.org/our-work/research-reports/impact-voter-suppression-communities-color

Matthews, S. (2022, May 3). Why Alito can’t find the right to abortion in the Constitution. Slate Magazine. Retrieved May 23, 2022, from https://slate.com/news-and-politics/2022/05/roe-decision-constitution-wasnt-written-for-women.html

Santhanam, L. (2022, May 19). Majority of Americans don’t want Roe overturned. PBS. Retrieved May 23, 2022, from https://www.pbs.org/newshour/politics/majority-of-americans-dont-want-roe-overturned

Scherer, M., Dawsey, J., Kitchener, C., & Roubein, R. (2022, May 10). A 49-Year crusade: Inside the movement to overturn Roe v. Wade. The Washington Post. Retrieved May 23, 2022, from https://www.washingtonpost.com/politics/2022/05/07/abortion-movement-roe-wade/

Tausanovitch, A. (2020, July 29). Voter-determined districts. Center for American Progress. Retrieved May 23, 2022, from https://www.americanprogress.org/article/voter-determined-districts/

Varol, O. (2015). Stealth Authoritarianism. Iowa Law Review.

Waldner, D., & Lust, E. (2018). Unwelcome change: Coming to terms with Democratic backsliding. Annual Review of Political Science, 21(1), 93–113. https://doi.org/10.1146/annurev-polisci-050517-114628 

Photo by Joshua Sukoff, “The United States Capitol Rotunda” (Unsplash), Creative Commons, Zero license