Justice Alito's Bad-Faith Appeals to Majority Rule

[Nevilledog]

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Scott Lemieux
@LemieuxLGM
I have a new piece at @TheProspect about claims that overruling Roe will mean that abortion policy will now be determined by more democratic means:

prospect.org
Justice Alito’s Bad-Faith Appeals to Majority Rule
The Supreme Court has eviscerated the ability for a majority of citizens to elect the representatives they want and have their will enacted.
10:55 AM · May 9, 2022

https://prospect.org/justice/justice-alitos-bad-faith-appeals-to-majority-rule/

In the draft opinion announcing the overruling of Roe v. Wade that was leaked to the public last week, Justice Samuel Alito tried to evade the radical implications of the Court’s holding by appealing to the virtues of democracy. Quoting from Justice Antonin Scalia’s dissent in Planned Parenthood v. Casey, the opinion asserts that controversies about abortion should be resolved “by citizens trying to persuade one another and then voting.”

While superficially appealing, these appeals to democracy and majority rule are stunningly disingenuous. The Court is about to overrule a very popular and well-established precedent, yet its desire to defer to “the people and their elected representatives” is, to put it mildly, selective. And because of various counter-majoritarian aspects of American constitutionalism—some pre-existing and exploited by Republicans, others actively created by them—the result will be policies on abortion that are far more restrictive than what a majority of voters want. What Republicans want is a world in which raw power rather than voter persuasion carries the day.

The most obvious way in which overruling Roe is counter-majoritarian is that the public has consistently supported the Court’s 1973 decision and still wants it to be upheld. This does not in and of itself mean that the Court’s pending decision to overrule it is wrong. But there is no precedent for the Court taking away a right that has gained this kind of popular acceptance, has been entrenched for so long, and that so many people have a deep reliance on. The fact that the Court does not have the public behind it can be seen in the general lack of candor Republicans have about their goals whenever a Supreme Court nomination is at stake. (The Wall Street Journal’s editorial board has seamlessly pivoted from assertions that a Republican-controlled Court would not overrule Roe to assertions that the sweeping condemnation of the logic underlying all of the Supreme Court’s precedents on sexual autonomy in Alito’s draft opinion should not be taken seriously or literally.)

Still, while I think that overruling Roe is a horrible mistake that will have extremely dire consequences, it would be much more tolerable if Alito’s rhetoric about judicial modesty and the importance of representative democracy could be taken at face value. The Supreme Court has for much of its history played a much greater role in American public policy disputes than is desirable or appropriate, and a reduced role for the Court in American politics would be welcome, even if it would inevitably mean fewer decisions liberals like too. Needless to say, however, judicial modesty is not what we’re going to get. The Roberts Court has always been remarkably arrogant and overbearing about its role in American government, and this is about to get a lot worse. And the complaints in Alito’s opinion about Roe’s alleged lack of rootedness in American constitutionalism are almost impossible to take, given how little legal foundation many of its most important opinions have.

*snip*

[bucolic_frolic]

1. Public testimony before Congress by officials are part of the social contract

Power from the people to the representatives, who exercise that power, to hire people to do the job for the people who elected them. It might not be a contract, but it's there, it's visible. And he lied, he now admits it. He didn't say he changed his mind, he said he's thought this way all along, even back when he publicly testified the opposite. Open and shut case.

[Dustlawyer]

2. For Alito to say that we should just vote to get the policy the majority of Americans want is rich,

considering all that SCOTUS has done to allow rich corporations to buy our politicians. Additionally, the SCOTUS rulings on voting rights and gerrymandering make Alito's statements a joke!

[Irish_Dem]

3. He is admitting only white christians get to vote.