In draft abortion ruling, Democrats see court at odds with democracy

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For nearly half a century, Republicans have railed against “unelected judges” making rulings they say rob voters of deciding for themselves which laws should govern burning issues.

But since the publication this week of a draft Supreme Court opinion that would overturn the longstanding constitutional right to abortion, it is Democrats who have embraced that complaint, reversing the script as the party expresses frustration. against the elements of the American system that have allowed a minority of voters in the country to elect lawmakers who have successfully reshaped the High Court.

House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Charles E. Schumer (DN.Y.) denounced the apparent conservative majority behind the draft advisory as “in no way accountable to the American people”. Rep. Jamie B. Raskin (D-Md.) described them as “handpicked and hand-picked by theocrats and autocrats.” Sen. Elizabeth Warren (D-Mass.) touted the document as the culmination of a conservative effort to secure a “majority on the bench that would accomplish something the majority of Americans don’t want.”

With this majority likely to last for the foreseeable future, criticism from the left that the Court’s rulings are not only wrong, but also evidence of a deeper rot within American democracy, has become a recurring theme. .

For conservatives, it all sounds familiar, an echo of their persistent demands that issues such as abortion be left to states — and their constituents — to decide.

“It actually looks like they took my arguments when I ran for the Senate in 2002,” said Tony Perkins, the conservative Christian chairman of the Family Research Council, which has pushed for decades to ban abortion. “What they’re saying is what Republicans have been saying for years.”

But Democrats insist this time is different. They say they have been pushed into a more divisive posture by structural advantages that have created an uneven political playing field and helped Republicans install a conservative majority on the ground that is out of step with the public will.

They also point to brass knuckles tactics by Republicans who have broken with convention, including denying President Barack Obama the chance of Senate hearings for one of his Supreme Court nominees and rushing confirmation of one of President Donald Trump’s nominees just weeks before an election. he would lose.

For many on the left, the combination has politicized the court – leaving them no choice but to respond in kind.

“Presidents from Abe Lincoln to Teddy Roosevelt have captured the energy of the public by showing up and campaigning against the power of the Supreme Court – and Democrats are slowly embracing that role,” said Brian Fallon, executive director of Demand. Justice, a liberal group that supports expanding the size of the court to defeat the current conservative majority. “The situation has completely given way to politics. The mythical idea that the court is completely above politics is a fraud.

Democratic anger is rooted in the structural advantages Republicans have recently enjoyed that give them disproportionate power relative to their public support.

Democrats have won the popular vote in seven of the last nine presidential elections, a span spanning more than three decades, in which all current Supreme Court justices have been nominated. But Republicans have won four of those nine Electoral College elections. And they appointed six of the current nine judges. Two Republican presidents, Trump and George W. Bush, who nominated five justices between them, won elections in which they received fewer popular votes than their opponents.

Republican power in the Senate, which must confirm Supreme Court nominations, has also been bolstered by constitutional provisions that give states an equal number of representatives in the upper house of Congress, regardless of population. Wyoming, with just over half a million people, has the same number of senators – two – as California, which has nearly 40 million.

As the popular vote has become increasingly polarized along an urban-rural divide, it has worked to the benefit of Republicans, who dominate in many less populous states.

The 50 Republican senators currently in office received 63 million votes in their last election, while the 50 Democratic senators had the preference of 87 million voters, according to a calculation by Michael Ettlinger, director of the Carsey School of Public Policy. from New York University. Hampshire.

Democrats were also upset by Trump’s decision to explicitly promise to appoint judges who would overturn the five-decade precedent identifying a woman’s right to an abortion under the Constitution’s 14th Amendment.

Several candidates strongly hinted during their confirmation auditions that they were inclined to let the precedent stand, especially if it had been confirmed, as Roe vs. Wade, by subsequent decisions. But if the draft notice leaked this week becomes the court’s ruling, even some Republicans said they would feel misled.

“If this leaked draft opinion is the final decision and this report is accurate, it would be completely inconsistent with what Judge Gorsuch and Judge Kavanaugh said in their hearings and in our meetings in my office,” he said. said Sen. Susan Collins (R-Maine). said Tuesday in a statement. Collins voted for both candidates.

Sen. Lisa Murkowski (R-Alaska) said the draft notice, while indicative of the court’s eventual decision, “shakes my faith in the court right now.”

Public opinion on abortion has remained fairly stable in the 49 years since the court ruled on it. Roe vs. Wade. According to Gallup, 21% of Americans thought abortion should be illegal in all circumstances in 1975, up from 19% in 2021. Twenty-two percent thought abortion should be legal in all circumstances in 1975, up from 32% in 2021. The plurality – 54% in 1975 and 48% in 2021 – said abortion should be legal under certain circumstances.

But the prospect of overturning the Supreme Court’s precedent gives a more definitive poll result. A Washington Post-ABC News poll taken last week found that 54% of Americans think the 1973 deer decision is expected to be upheld, while 28% believe it should be overturned – a margin of around 2 to 1. This matches other recent polls that have shown strong support for maintaining the legal status quo.

Despite the national picture largely in favor of deer, conservatives have argued for decades that the court should step aside and let the popular will prevail in the states. In their opinion, Roe vs. Wadewhich demanded that women have the basic right to abortion, hampered the ability of state legislatures and governors to make their own decisions.

“It is time to uphold the Constitution and refer the issue of abortion to the elected representatives of the people,” Judge Samuel A. Alito Jr. wrote in the draft opinion released Monday. The Supreme Court, in a statement, confirmed that the document was “authentic”, while stressing that it did not represent the final position of the court or any of its members.

If the court cancels deer, 13 states have laws that would immediately ban or limit abortion. Four other states, including Michigan and Wisconsin, which have Democratic governors and attorneys general, have existing laws dating from before 1973 that ban abortion and would become enforceable again.

A decision to overturn Roe v. Wade would upset midterms

Democrats say Republicans have drawn legislative lines in some of those states in a gerrymandered way that frustrates the popular will. Michigan Republicans, for example, have consistently won fewer votes in legislative elections over the past decade, while maintaining their ruling majority due to constituency lines.

“If Wisconsin weren’t one of the deadliest states in the nation, Democrats would do everything in their power to pass a bill overturning the criminal ban on abortion,” the rep said. Greta Neubauer, Democratic Minority Leader in the State Assembly. “Wisconsin has a criminal prohibition on abortion in the books from 1849, which has no explicit exemption for rape or incest.”

As the battle over abortion escalates in the states, the federal justice system has been badly bruised by decades of disputes over the issue.

Chief Justice John G. Roberts Jr.’s quest to bolster the High Court’s institutional legitimacy in the minds of the American people, in particular, suffered.

He took office announcing in 2007 that he aimed “to keep all forms of partisan division out of the justice system,” and as recently as 2018 went so far as to berate Trump for outlining federal courts. as partisan bodies where decisions could be determined. by partisan appointments.

“We don’t have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a 2018 statement reaffirming the court’s impartiality.

Supreme Court to investigate leaked abortion draft opinion

Yet, with both sides now critical of the judiciary, there is little evidence its efforts will turn the tide.

Even if the Conservatives get what they want and deer is overthrown, they have shown no interest in opting out of the court battles that have served them well over the past few decades.

“The pro-abortion lobby has destroyed the judicial confirmation process, debased civic discourse and now intends to destroy the federal justice system,” said Ralph Reed, founder of the conservative Faith and Freedom coalition, “all this at the name of the preservation of an abortion-on-demand regime imposed on the country by judicial decree.

Democrats, meanwhile, say they are prepared for the court to eventually overturn other precedents, including those that have expanded the rights of American gays, women and people of color.

“For most of American history, elite political actors have had a common interest in preserving the Supreme Court as an institution seen as distinct and above politics,” Richard said. H. Fallon Jr., of Harvard Law School. teacher.

He said he sees this tradition eroding. “Certainly at no time in my life,” Fallon said, “has the Supreme Court been more vulnerable than it is now.”


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