Roe v. Wade is just one of the first casualties to come as a result of Trump’s brand of stealth authoritarianism and the gradual weakening of American democracy since his rise to power
The recent leaked draft decision of Justice Samuel Alito that would seek to overturn Roe v. Wade is only one of the first in what is to be a long list of American laws that will be rewritten by the now Conservative majority-led Supreme Court. By intending to overturn Roe v. Wade, and thereby endangering women’s access to legal abortions in many states, the Supreme Court has demonstrated that it will now be largely guided by partisan affiliation rather than the principles of bipartisanship upon which it was founded. Through the successful court-packing efforts of a single populist US President, the Supreme Court, an ostensibly neutral institution designed to provide unbiased interpretations of the Constitution, has now been corrupted in such a manner that it can no longer serve this balancing function. Rather than serving its role of checks and balances on the executive and legislative branches of government, SCOTUS will likely serve to affirm and promote the objectives of extreme Conservative elements within these other institutions. When it comes to the Supreme Court, what we have witnessed is an aspiring autocrat’s distortion of public institutions designed to uphold democracy such that they weaken the very foundations of our system of government. As described by Steven Levitsky and Daniel Ziblatt in their book How Democracies Die, “This is how elected autocrats subvert democracy–packing and ‘weaponizing’ the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and rewriting the rules of politics to tilt the playing field against opponents.” (7) It may be deeply distressing to even contemplate authoritarian behavior occurring within the United States, but one must acknowledge that the Trump presidency used countless strategies taken directly from an authoritarian playbook. The overturning of Roe v. Wade is simply one of the first casualties that are to come as a result of Trump’s brand of stealth authoritarianism and the gradual weakening of American democracy that has become ever more apparent since his rise to power.
Though many Americans are rightfully outraged at the endangerment of abortion access, we must unfortunately view this as only one of many rulings from this court that will systematically dismantle much of U.S. legal precedent for the next several decades. We must all brace ourselves for a wave of Supreme Court rulings that will likely support long-held Conservative objectives that are at odds with the views of a vast majority of the American public. While Supreme Court rulings have historically been influenced by public opinion and zeitgeist, it appears that the court has now become unmoored from the will of the people. Indeed, overturning Roe v. Wade would serve a Conservative agenda rather than being in line with public opinion. A recent Gallup poll demonstrated that the majority of Americans identify as “Pro-Choice” and an even greater majority oppose the overturning of Roe v. Wade. As such, a decision to overturn women’s rights to legal abortion would illustrate the scale to which the Supreme Court has become untethered from the proper function of American democracy.
Just as the rights to legal abortions have long been squarely in the GOPs crosshairs, we can only hold our breath as we await the inevitable assaults on issues like Affirmative Action, the voting rights of minorities, and the powers of the Environmental Protection Agency. More distressing still, as reported by David Cohen of Rolling Stone, in an increasing number of cases since the beginning of the Trump presidency, the Supreme Court has begun using a legal instrument called a “shadow docket” to expedite normal court hearing procedures and force decisions on high-profile and controversial issues despite the fact that there is no express reason that the such haste is needed. Following the lead of Donald Trump, the Conservative-led Supreme Court is increasingly displaying its desire to be unimpeded by democratic legal processes. In keeping with the Conservative agenda, it is also likely that we will see Supreme Court rulings in favor of expansions of Second Amendment protections and gun rights, increased public funding for private religious schools as in the case of Carson v. Makin, and the use of the First Amendment right to freedom of speech to justify an anti-labor agenda and as a tool for deregulation.
Some may argue that the Supreme Court has always been an undemocratic instrument and that this is not unique to the post-Trump era, or even that the function of the judiciary is not meant to be democratic because Supreme Court Justices should not be elected but rather appointed and serve longer terms so as not to be susceptible to public opinion. While the basic logic of the latter argument stands to reason, for indeed laws should not be rewritten according to every election cycle, this view cannot account for the dramatic Conservative advantage within the court and the radical agendas of Trump’s appointed judges. Never before has the Supreme Court been so highly politicized, and not since Ronald Reagan has a single president been able to rebalance the court by appointing so many judges. Using the very logic of that counterargument, with the appointment of three judges, Trump was indeed able to make the Supreme Court subject to the election cycle. The 2016 presidential election was not only historic because it resulted in the election of an aspiring autocrat to the White House, but it also resulted in a dramatic partisan unbalancing of the Supreme Court for several decades to come.
The damage that could be done by such a brazenly partisan Supreme Court cannot be overstated, especially considering the fact that all of Trump’s appointed Justices are fairly young and will serve for several decades. In his single term in office, the 45th President managed to stack the deck in the Republican party’s favor. Among these and many other concerns, through his court packing, Trump may have even secured himself a second term in office, for lest we forget, the outcome of the Bush v. Gore presidential election of 2000 was determined by the Supreme Court. This is not conjecture but fact, as we already know of Trump’s intentions to use the Supreme Court to his advantage in presidential elections. Prior to his loss to Joe Biden in the 2020 presidential election, Trump indicated exactly that when he stated that it was imperative that all his Supreme Court appointees be in place before the election because “I think [the election] will end up in the Supreme Court”. It is clear then, that Donald Trump believed that his three appointed justices would ensure his electoral victory in 2020, and it is likely that he would use them to his advantage should he run again in 2024. It remains to be seen whether or not Trump will make another bid for the Presidency, but if he does, it is highly likely that the Supreme Court will be one of the many tools he uses in his autocrat-inspired arsenal to return to power.
Sources:
Steven Levitsky and Daniel Ziblatt. “How Democracies Die” New York: Crown. Chapter 1. 2018
Noah Feldmen. “US Justices Are Looking More Like Politicians” Bloomberg. May 11, 2022
Adam Liptak. “A Conservative Lawyer’s New Target After Abortion : Affirmative Action” May 23, 2022
https://www.nytimes.com/2022/05/23/us/politics/supreme-court-affirmative-action.html
Linda Greenhouse. “The Supreme Court, Weaponized”. New York Times December 16, 2021
https://www.nytimes.com/2021/12/16/opinion/supreme-court-trump.html
Committee to Protect Journalists“The Trump Administration and the Media”.CPJ. April 16, 2020
https://cpj.org/reports/2020/04/trump-media-attacks-credibility-leaks/
Megan Brenan. “Steady 58% of Americans Do Not Want Roe v. Wade Overturned’ Gallup News. June 2, 2022
https://news.gallup.com/poll/393275/steady-americans-not-roe-wade-overturned.aspx
Rachel Treisman. “In a new U.S. poll, a majority identify as ‘pro-choice’ for the first time in decades”. NPR. June 3, 2022
https://www.npr.org/2022/06/03/1102872199/gallup-poll-pro-choice-roe-v-wade-supreme-court
Carson v. Makin Supreme Court Oral Arguments. December 8, 2021
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-1088_7kh7.pdf
Melissa Quinn “Upcoming Supreme Court ruling in major Second Amendment case looms over calls for new gun laws”. CBS News. June 2, 2022
https://www.cbsnews.com/news/supreme-court-gun-control-case-new-york-second-amendment/
The Economist. “Would the Supreme Court hand Donal Trump a second term?”. October 3, 2020
Carrie Johnson. “US Judges are narrowing voting protections. Some fear lasting damage.” NPR. February 25, 2022
Elizabeth Kolbert. “The Supreme Court Case That Could Upend Efforts to Protect the Environment”. The New Yorker. January 10, 2022
David S. Cohen. “ The Supreme Court’s ‘Shadow Docket’ Is Even Shadier that It Sounds” Rolling Stone. April 10, 2022
Adam Zivo. “The U.S. Supreme Court is undemocratic – and that’s as it should be”, The National Post. May 4, 2022
Photo by FIVETHIRTYEIGHT/ Getty Images, Creative Commons Zero License
The court’s ruling to overturn abortion will have a devastating impact on its credibility. Kavanaugh, Gorsuch, and Barret all stated that Roe was established precedent during their supreme court hearings. Now, millions of women in the country will lose access to safe abortions and as you pointed out, it will likely not stop here. McConnell has already said that he would attempt to push for a national abortion ban next time the Republican party is in power. What this really shows is that we desperately need to amend the way that the supreme court is structured. It is insane to me that any nine people can hold lifetime appointments when they get to make decisions that will impact the course of the country for decades to come.
Hello Ezra! I found your blog to be very interesting. Since the Supreme Court decision was leaked many of us have just focused on how it will impact abortion rights. Your blog helped me put into perspective that it is much more than just abortion right that could be affected which is very scary.
I completely agree that it is deeply distressing to learn about the possibilities that can come from the overturning of Roe v. Wade. It is concerning that one conservative president can cause such damage to a democratic system, which brings around the question about how stable the democratic system was in the first place. The overturning of Roe v. Wade can and will have rippling ramifications for the rights of women and minorities everywhere, which is why we must start mobilizing now.
Great breakdown of this, Ezra. I definitely do agree that court-packing is anti-democratic, and that the GOP is starting a dangerous precedent. But if I remember right, a more recent development in this story is that the opinion is probably going to be revised because of the intense public outcry of it all. For the sake of discussion, let’s assume this is right. I think this then puts SCOTUS in a weird light; on paper, they’re supposed to be the non-political branch in our government. It’s only supposed to look at the legality of legislation, executive actions, etc. in light of the text of the Constitution. Once SCOTUS becomes an institution that is worried about its public image, doesn’t this force the Court to be political? You could be cynical and say it was always political. But this precedent would make the Court explicitly political. If this becomes the norm, would this make the Court more political? Isn’t over-politicization of the Court how we got here? Or is this not even a necessarily bad thing?
The ability of Trump to stack the Supreme Court to his advantage has set the stage for his far right populist movement to strike down any laws or disagreements that aren’t in their favor. As you point out, the overturning of Roe is likely just the beginning of the far right abusing the conservative leaning court. Now that the numbers are solidified, there is no telling how far conservatives will go if they were already able to overturn Roe. The ability of the far right to manipulate the court to exert control over the rights and privacy of the masses is alarming, and should be of great concern to anyone who cares about human rights. It is only a matter of time before they come for the rights of minorities, or revoke gay marriage rights as this has long been a goal of traditional conservatives. The Supreme Court is not a nonpartisan system, and is being turned into a weapon to strip the rights from a dissenting majority. With more far right election denying pro trump individuals being elected in the midterms, it is only. a matter of time before we see the court be used against the will of the people again in the future.