Roe v. Wade, the landmark decision made by the U.S. Supreme Court that fundamentally altered and improved women’s rights, is in jeopardy of being overturned. Last week, the first ever Supreme Court opinion draft to be leaked in its entirety informed the nation that the Justices have voted amongst themselves to overturn the monumental Roe v. Wade case of 1973. Within the opinion draft, the court explains that they agree with Justice Byron White’s claim that the Justices who decided the 1973 case exercised “raw judicial power” and “sparked a national controversy” that has remained a factor in political culture to this day (SCOTUS, 2022). Essentially, the Supreme Court of the United States intends to overrule Roe v. Wade because the Justices do not see it as their place to federally mandate the legality of abortion, and they claim that ending the controversy that has “embittered our political culture for a half-century” takes precedence over a woman’s right to choose (SCOTUS, 2022). The opinion draft has revealed that the U.S. Supreme Court intends to eliminate the guaranteed right to an abortion, thereby dampening women’s rights and fundamentally reducing equality within the nation, and they plan to do so behind the veil of law and democratic rhetoric, also referred to as “Stealth Authoritarianism” (Varol, 2015).
Authoritarianism may evoke thoughts of brutal dictatorships, led by viscous, power hungry individuals like Adolf Hitler or Joseph Stalin. Dictators like them made no effort to conceal their intentions, and nearly every legislative action they took was intended to defy democracy in order to sustain and strengthen their power. However, authoritarianism has evolved into something potentially even more dangerous to democracy. The “new generation of authoritarians” have learned that they can utilize “legal mechanisms that exist in democratic regimes [to perpetuate their power]” (Varol, 2015). By utilizing these legal mechanisms, they are able to implement repressive legislation behind the front of otherwise seemingly democratic methods.
Within the leaked opinion draft, Justice Alito, the author of this draft on behalf of the Court, is sure to support its decision to overturn Roe with democratic rhetoric. As one in favor of the decision is likely to argue, nowhere within the document does the Court appear to hold any overtly authoritarian views or intentions, and in fact, the Court emphasizes on numerous occasions that the decision is being made in an attempt to strengthen democracy.
For example, The draft actually argues that the initial implementation of Roe v. Wade violated democracy and even referred to it as a “highly restrictive regime” (SCOTUS, 2022). Additionally, the Court argues that Roe v. Wade cannot stand because the Constitution makes no reference to abortion. However, this claim undermines the Court’s own power of judicial review, a tactic in which the Court may use its best judgment to interpret unstated implications of the Constitution. While this could be seen as a legitimate argument, regardless of how preposterous, if the Court decided to overturn every decision made through judicial review, claiming that it did not hold the right to do so.
However, this is not the argument made by the Court. Rather, the draft explains that while the Court argues that it must overturn Roe because the Constitution does not mention abortion, it is still allowed the power of judicial review as long as the matter at hand is “deeply rooted in this Nation’s history and tradition” (SCOTUS, 2022). The Court is the only entity that can classify a case as being deeply rooted in the Nation’s history and tradition, so essentially, the Court argues that it has the right to judicial review when it so chooses, meaning that if it chose to uphold Roe, the fact that abortion is not mentioned within the Constitution would not have prevented it from doing so. This is an example of the way in which the Court is wielding democratic methods and rhetoric to repress women’s rights and equality in the United States.
Further proof of the Court’s attempt to repress women’s rights behind the veil of democratic action comes with the comparison of the leaked opinion draft and the Court’s official website. First, supremecourt.gov explains that judicial review is a tool intended to ensure “that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature” (supremecourt.gov). In contrast, the draft explains that abortion laws should be decided by state legislatures, even though several polls, including one done by Politico, show that over sixty percent of voters disagree with outlawing abortion entirely, indicating that the Court’s decision directly opposes its stated intent. Second, supremecourt.gov states that “Constitutional interpretation and application were made necessary by the very nature of the Constitution,” and quotes Justice Marshall in his claim that “it is emphatically the province of the judicial department to say what the law is” (supremecourt.gov). Once again, the Court’s argument is in direct conflict with its official website. Although the Court forms its argument in a way that may appear, at least at first glance, to be entirely democratic in nature, with further analysis, it appears that the Court has masked their choice to overturn Roe v. Wade and dampen women’s rights in democratic jargon. The reasoning used in its decision is in direct conflict with the Court’s own explanation of how it is supposed to function. The decision made by the Supreme Court of the United States in the opinion draft is far from democratic.
Although the Court forms its argument in a way that may appear, at least at first glance, to be entirely democratic in nature, with further analysis, it appears that the Court has masked their choice to overturn Roe v. Wade and dampen women’s rights in democratic jargon. The reasoning used in its decision is in direct conflict with the Court’s own explanation of how it is supposed to function. The decision made by the Supreme Court of the United States in the opinion draft is far from democratic.
Photo by Ellena Erskine via SCOTUSblog
Judicial Review argues that those institutions with longstanding roots in the American tradition ought to be protected by the Supreme Court. Whats interesting is whether this applies to specific actions (the marrying of same-sex individuals, abortion) or if it applies to the concepts behind them (equal protection under the law, right to bodily autonomy).
The right to safe, legal abortion is widely supported by the American public, but the court ruling that upholds it (for now), is extremely weak and shaky. An argument could be made that the Supreme Court is overturning a decision that interpreted the Constitution too liberally, superseding the authority of the legislature in the crafting of laws/amendments to the Constitution. In this sense the court eroded the barriers separating powers. Not to say that there aren’t good reasons for this (deadlocked congress etc.), but the argument the court makes is one of rolling back its overstep of authority. Which is an appeal to institutionalism, not activism.
This will hopefully force an actual law legalizing abortion federally.
Hi Connor, I really enjoyed reading this post and your application of stealth authoritarianism. The leaking of the SCOTUS decision happened just after our last Democratic Erosion seminar here at Brown. Since we didn’t get to discuss it in class, it’s great to read your analysis of its implications for American democracy.
I think one further aspect of Varol’s paradigm of judicial review that can be applied is the deference of controversial decision making to the judiciary. Varol writes: “By entrenching its policy preferences in a relatively autonomous judiciary, the regime can allow the judiciary to protect its interests, authorize judges to issue controversial decisions that political elites approve but cannot publicly champion, and insulate themselves from political accountability in the process.” (pg9). While the Republican party did not explicitly defer the issue of abortion to the Supreme Court, I think an argument can be made that the conservative majority secured in the Trump era at least partially meets this criteria, insofar as he packed the courts with judges who shared his political interests.
I think your note about 60+ percent of voters disagreeing with the SCOTUS decision is very interesting, and brings us back to the very definition of democracy. At Brown, we examined Schumpeter’s definition, which locates the existence of democracy in a particular institutional arrangement. The controversy surrounding SCOTUS demonstrates that such minimalist definitions of democracy are at times insufficient. Though the SCOTUS decision was indeed facilitated by a democratic institution, and the conservative judges responsible were appointed by a leader elected through “competitive struggle”, the Politico poll you cited demonstrates that this decision was certainly undemocratic. The Politico poll also indicates that “the will of the people” can sometimes be a useful concept in defining and negotiating democracy, despite the ways in which the phrase been problematised owing to its vagueness.
Hi Connor! I really enjoyed reading your blog and I liked how you showed that authoritarian leaders chose to advertise the way they thought regarding legislation, as that is similar to what happened with the leaked draft. I also thought you brought up a very interesting point about the language in the constitution and how it doesn’t mention anything about abortion. This is a similar argument where it doesn’t necessarily say that same-sex couples are banned in the Bible. They both have intentions of repressing marginalized communities.