A specter is haunting the American left—the specter of Roe v. Wade being overturned. Hence the panicked reactions of left-wing commentators to last week’s oral argument before the Supreme Court in Dobbs v. Jackson Women’s Health Organization. Will the Court actually overturn Roe and thus revoke abortion’s present status as a constitutionally protected right? We won’t know until next summer. Nevertheless, it is instructive to reflect on the left’s pre-emptive condemnations of such a ruling.
One prominent left-wing complaint—reiterated by activists and commentators on Twitter and elsewhere—suggests that a decision by the Supreme Court to reverse Roe would lack democratic legitimacy because of the political back-story of the justices necessary to a majority for such a ruling. After all, it is insisted, any majority to overturn Roe would depend on at least three votes from justices nominated by a president—Donald J. Trump—who did not win a majority of the popular vote. This is in fact just a specific version of an objection that is commonly raised by the left to anything that might be done by the Court’s current majority of Republican-appointed justices.
The first thing to note about this objection is that it is entirely beside the point for anyone who understands and respects the traditional role of the Supreme Court in our system of government. The key virtue of a Supreme Court ruling is not its democratic legitimacy but its constitutional legitimacy. The Court’s job is not faithfully to represent the public will—we have other institutions to do that—but to faithfully interpret the meaning of the Constitution. One of our first and greatest constitutionalists—Alexander Hamilton—teaches this lesson in Federalist 78. There Hamilton notes that the very purpose of the judiciary’s independence is to ensure that the judges are free from “too great a disposition to consult popularity.” If an American court is to do its work properly,” Hamilton suggests, then “nothing would be consulted but the Constitution and the laws.”
But since the left has brought it up, it is worthwhile to offer a more complete account of this question of democratic legitimacy and the constitutional right to abortion. If democratic legitimacy is a principle—and not just a polemical weapon wielded by the left in a selective and self-serving way—then we would have to consider not only the democratic legitimacy of a potential reversal of Roe but also the democratic legitimacy (if any) of the constitutional right to abortion itself. Such an inquiry reveals that the existing constitutional right to abortion lacks democratic legitimacy—in its origins, in its development, and at the present time.
The constitutional right to abortion—or the alleged constitutional right to abortion—originated in the Supreme Court’s 1973 ruling in Roe v. Wade. In its opinion, the Court announced a new constitutional right, found neither in the text of the Constitution nor in the Court’s own previous jurisprudence, and tried to justify it with arguments that even many abortion proponents have conceded are very flimsy. Roe was, in the apt expression of dissenting Justice Byron White, a “raw exercise of judicial power.”
In 1973, the American people had not been consulted, either directly or indirectly, about the Court’s project of creating a new constitutional right to abortion. The decision was made by seven justices—Harry Blackmun, Warren Burger, William O. Douglas, William Brennan, Potter Stewart, Thurgood Marshall, and Lewis Powell. The justices had been appointed to the Supreme Court over a relatively long period of time by presidents of both national political parties. Some of those presidents had won big majorities of the popular vote—such as Franklin Roosevelt (who appointed Douglas), Lyndon Johnson (who appointed Marshall), and Dwight Eisenhower (who appointed Brennan and Stewart). Three of the justices—Burger, Blackmun, and Powell—had been appointed by a president, Richard Nixon, who in his first term had won only about 43% of the vote, due to the third-party candidacy of George Wallace.
From the standpoint of a concern with democratic legitimacy, however, the key point is this: the potential creation of a constitutional right to abortion by the Supreme Court was certainly no part of the political campaigns of any of these presidents. None of them ran for office promising to nominate justices who would create new constitutional rights, much less a specific right to abortion. Such an appeal would hardly have been helpful to a candidate’s electoral prospects in 1968, 1964, 1956, 1952—let alone 1936, when Roosevelt was elected to the term during which he elevated Douglas to the Court. Similarly, the idea that it would be part of the mission of any of these justices to devise a new right to abortion through a novel interpretation of the Constitution was not entertained in their confirmation hearings. It was therefore no part of the record on which Senators, acting as representatives of their constituents, could have deliberated in deciding whether to confirm these justices. In its origins, then, the constitutional right of abortion has no democratic legitimacy. It was simply thrust on the United States by seven Supreme Court justices.
The abortion right’s lack of democratic legitimacy was not remedied by subsequent events. The most important of those events would be the 1992 reaffirmation of Roe by the Supreme Court in Planned Parenthood v. Casey. At that time, the Court included five justices—Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David Souter, and Clarence Thomas—appointed by two presidents, Ronald Reagan and George H.W. Bush, who won significant popular-vote majorities after campaigning as pro-life candidates and critics of liberal judicial activism. Adding these justices to the two Roe dissenters who still remained on the Court—William Rehnquist and Byron White—there was a potential 7-vote majority to reverse Roe and return the question of abortion to the states. In the event, however, abortion remained a constitutional right, because O’Connor, Kennedy, and Souter unaccountably opted to retain Roe’s “central holding” even as they could not (and did not try to) defend its reasoning.
In Casey, Roe was upheld by a Supreme Court majority made up of three justices who had been nominated by pro-life presidents, combined with one (Blackmun, the author of the original Roe opinion) who had been appointed by a president (Nixon) who had certainly not campaigned on the creation of a right to abortion, and another (John Paul Stevens) who had been appointed by a man, Gerald Ford, who had been elected neither to the presidency nor even to the vice presidency. In the wake of Casey, then, the abortion right’s pretensions to democratic legitimacy were no better than they had been in 1973. Indeed, the situation was worse than that. In Casey, the voters were not only not consulted; they were ignored. If the Court’s job was to respond to the democratically expressed will of the American people, it might rather have concluded that three thumping presidential victories in a row by pro-life Republicans indicated that the country was ready for a reversal of Roe.
We come now to the present moment in our nation’s history, when the current Supreme Court has to decide Roe’s fate. Today, the constitutional right to abortion possesses no more democratic legitimacy than it has ever had. It is not and never has been the expressed will of the American people that such a right should exist. This is not to say, however, that it is the will of the people that Roe should be reversed and the constitutional right to abortion be discarded. Rather, American public opinion on this question is, as it has been for decades, mixed. It is probably fair to say that there is about a third of the country that is ardently attached to Roe, an opposed third that would be happy to see it overturned, and a third in the middle that is ambivalent about the question—that is either unsure or uninterested, or that does not want abortion totally prohibited but, at the same time, does not want it as freely available as the constitutional right, currently interpreted, permits it to be.
In a situation like this, there is nothing the Court can do that will have perfect democratic legitimacy. This is why the justices would be well-advised to set aside the question of democratic legitimacy and decide the question on its constitutional merits—thus confining themselves to the limited, but essential and dignified, task assigned to them by the Constitution itself.