From The Irrational, Misguided Discourse Surrounding Supreme Court Controversies Such as Roe v. Wade by Glenn Greenwald. No, this is not a post about the abortion debate.
Greenwald is pointing out something which happens so frequently that it is as if no journalist ever took a civic class in High School. We are a constitutional republic with a system of checks and balances intended to protect citizenry from both the government itself as well as from enthusiastic but likely ill-considered majoritarian sentiments.
American journalists seem to have no sense of either our history or the deliberate structure of our government. When journalists or public intellectuals rail against the electoral college, or the Senate, or advocate packing the Supreme Court, or State and Local governments pursuing policies injurious to the sensibilities of journalists, it always appears that they do not understand the structure of the government.
All my adult life, people I admire and whose intellect, knowledge, and wisdom I respect, have always observed that regardless of where one might stand on the particulars of the abortion debate, Roe was wrongly decided because it addressed a legislative issue through the court system in a manner never intended.
Their argument was that since abortion was not an enumerated right, the proper course was for the Supreme Court to push the issue back where it belongs - to be decided by the people's representatives in Congress where national laws, including ones addressing abortion, are passed. Or back to the states where state legislatures can decide the issue.
Among those I respect, there is a corollary. Social and legislative issues should always be decided through the legislative process rather than judicial decisions. All laws depend on consent and legislatures are where we attempt to produce consent. Not courts.
Most the hoopla I see being advanced today is about advocates for a particular policy wailing at the reversal of that policy. I have seen no one, so far, actually arguing that Roe v. Wade was properly decided or that contentious abortion law should be decided by the people's representatives.
Greenwald makes a similar point.
Every time there is a controversy regarding a Supreme Court ruling, the same set of radical fallacies emerges regarding the role of the Court, the Constitution and how the American republic is designed to function. Each time the Court invalidates a democratically elected law on the ground that it violates a constitutional guarantee — as happened in Roe — those who favor the invalidated law proclaim that something “undemocratic” has transpired, that it is a form of “judicial tyranny” for “five unelected judges” to overturn the will of the majority. Conversely, when the Court refuses to invalidate a democratically elected law, those who regard that law as pernicious, as an attack on fundamental rights, accuse the Court of failing to protect vulnerable individuals.This by-now-reflexive discourse about the Supreme Court ignores its core function. Like the U.S. Constitution itself, the Court is designed to be an anti-majoritarian check against the excesses of majoritarian sentiment. The Founders wanted to establish a democracy that empowered majorities of citizens to choose their leaders, but also feared that majorities would be inclined to coalesce around unjust laws that would deprive basic rights, and thus sought to impose limits on the power of majorities as well.[snip]Thus, the purpose of the Bill of Rights is fundamentally anti-democratic and anti-majoritarian. It bars majorities from enacting laws that infringe on the fundamental rights of minorities. Thus, in the U.S., it does not matter if 80% or 90% of Americans support a law to restrict free speech, or ban the free exercise of a particular religion, or imprison someone without due process, or subject a particularly despised criminal to cruel and unusual punishment. Such laws can never be validly enacted. The Constitution deprives the majority of the power to engage in such acts regardless of how popular they might be.And at least since the 1803 ruling in Madison v. Marbury which established the Supreme Court's power of "judicial review” — i.e., to strike down laws supported by majorities and enacted democratically if such laws violate the rights guaranteed by the Constitution — the Supreme Court itself is intended to uphold similarly anti-majoritarian and anti-democratic values.When the Court strikes down a law that majorities support, it may be a form of judicial tyranny if the invalidated law does not violate any actual rights enshrined in the Constitution. But the mere judicial act of invalidating a law supported by a majority of citizens — though frequently condemned as “undemocratic" — is, in fact, a fulfillment of one of the Court's prime functions in a republic.Unless one believes that the will of the majority should always prevail — that laws restricting or abolishing free speech, due process and the free exercise of religion should be permitted as long as enough citizens support it — then one must favor the Supreme Court's anti-democratic and anti-majoritarian powers. Rights can be violated by a small handful of tyrants, but they can also be violated by hateful and unhinged majorities. The Founders’ fear of majoritarian tyranny is why the U.S. was created as a republic rather than a pure democracy.Whether the Court is acting properly or despotically when it strikes down a democratically elected law, or otherwise acts contrary to the will of the majority, depends upon only one question: whether the law in question violates a right guaranteed by the Constitution. A meaningful assessment of the Court's decisions is impossible without reference to that question. Yet each time the Court acts in a controversial case, judgments are applied without any consideration of that core question.
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