The Supreme Court and the façade of U.S. democracy

The US Supreme Court’s decision overturning the Roe v Wadedecision is the latest in a long string of government decisions that put a question mark over whether the U.S. can be considered a democracy in any real sense.

It’s not just that the decision goes against the will of, according to opinion polls, seven out of 10 or more Americans, or that it will devastate and worsen the lives of millions. It’s the result of a government system set up in the Eighteenth Century that is increasingly anachronistic in the Twenty First Century. And yet, most of the political elite—whether conservative or liberal—pay homage to this increasingly dysfunctional system.

This takes place while congressional investigators have revealed the extent to which Donald Trump and his minions attempted to cancel the votes of more than 80 million Americans in a fraudulent, and anti-democratic, attempt to stay in power after voters decided to throw him out of office in 2020.

While these two events transpiring in Washington may seem disconnected, they are closely linked. These crises stem from a central feature of the US Constitution that no one in the political elite really questions: the fact—affirmed by the Supreme Court—that U.S. voters don’t really choose the president. The Electoral College, that relic of the Eighteenth Century’s rotten compromise with slavery, chooses the president.

So,the Electoral College that put Trump in office—and which Trump tried to manipulate to his advantage even after he lost the majority of votes in 2020—is one of the chief culprits.

Consider how this worked in the Supreme Court decision overturning Roe v Wade.Presidents who appointed four of the six justices who voted to shred Roegot to the Oval Office after losing the national popular vote (in 2000 and 2016). And it gets worse from there.The journalist Daniel Lazare, who has written extensively on the archaic nature of the U.S. Constitution, calculated that the conservatives on the Supreme Court receive U.S. Senate confirmation votes from senators representing an average of 47 percent of the U.S. population.

That’s another reminder of an undemocratic constitutional structure that grants the same Senate representation to a state with 39 million residents (California) as it does one with fewer than 600,000 residents (Wyoming). Therefore, the average person living in Wyoming actually has far greater representation in the U.S. Senate than does the average person living in California. By any semi-modern concept of democracy, this is absurd.

And yet, throughout U.S. history, conservative and reactionary forces have taken advantage of the perfectly legal ways that the Constitution allows political minorities to veto or derail the will of the majority.

A century ago, the most reactionary elements in the U.S. were found in the Democratic Party in the South (often called “Dixiecrats”). They used “states’ rights,” the disenfranchisement of Black voters, and reactionary court decisions to maintain their segregationist control of the largely rural areas of the U.S. Although they represented numerical minorities of the U.S. population, they exercised outsized control in congressional leadership and in the Democratic Party.

Only the political upheavals of the Great Depression, accompanied by a rising labor movement, helped to break through this logjam where the most backward elements in the U.S. thwarted progress. But it wasn’t long before the Dixiecrats made common cause with conservative Republicans to form a new “conservative coalition” that opposed social progress from the 1930s to the 1980s.

Today, the most reactionary elements in the U.S.—now housed in the Republican Party—are using many of the same “states’ rights” tactics and anti-democratic court decisions to win in policy what they clearly cannot win in the “court of public opinion”. And the “court of opinion” is such because the social movements of the 1960s—in particular, the civil rights,women’s, and LGBTQ movements—pushed the creaky U.S. political system to respond.

The problem was that the liberal side of the U.S. political elite and its followers in the broader populace mistook the brief period in which the Supreme Court seemed to be on the side of reform (roughly from the mid-1950s to the mid-1970s) as the way things were supposed to be. That discounts the entire history of the Supreme Court, which has always been the most reactionary section of the U.S. government.

But their idea that the Supreme Court dispensed justice that flowed from the Constitution allowed liberals to avoid having to really fight to defend the rights that the court seemed to have granted. The long right-wing campaign against abortion is the most blatant example. While the right figured out all sorts of ways to chip away at abortion rights, and while it combined legal maneuvers with protest (and even terrorism against abortion clinic staff and doctors), the liberals remained on the defensive, but ultimately trusted that the court would protect them. If anyone wants to know why the Democrats and liberals seem today to be so unprepared for a decision that has been foretold for years, a good place to start is in the ideological disarmament that liberals’ trust in the Court fostered.

As Lazare wrote shortly after the draft decision overturning Roe leaked to the media:

This is what makes people like Chuck Schumer, Nancy Pelosi, and Elizabeth Warren so contemptible. The day after Politico published the draft, Schumer called on Congress to codify Roe v. Wade by writing the right to an abortion into law. But it’s so much empty blather . . .

[T]his is the same Nancy Pelosi who not long ago sang an ode of joy to — get this! — “the beautiful, exquisite, brilliant genius of the Constitution,” the same Constitution that is now robbing women of a fundamental right.

Finally, there’s Elizabeth Warren. “An extremist Supreme Court is poised to overturn Roe v. Wade and impose its far-right, unpopular views on the entire country,” she tweeted on May 2. “It’s time for the millions who support the Constitution and abortion rights to stand up and make their voices heard. We’re not going back – not ever.” Brave words! But you are going back, Liz, because the slaveholders’ Constitution is not the instrument of democracy you say it is. Rather, it’s a blueprint for minority control that you’ve spent your entire career helping to enforce.

The Democrats hope that outrage over losing legal abortion will save them from the midterm wipe out they are expected to suffer in November. And yet, they are so incompetent at politics, and so committed to a status quo that the conservatives seem only too willing to tear down, that they are flat-footed. The liberal blogger Josh Marshall has campaigned for months that the Democrats should make a concrete promise that, if they retain their House majority, and increase their senate majority, they will scrap the filibuster and pass a national law legalizing abortion nationwide.

While some elements of the Democratic Party have embraced some of these ideas, the “institutionalists” among them don’t want to do anything as radical as getting rid of the filibuster, an archaic rule that makes the U.S. Senate even more anti-democratic than its representation already is. Simply put, Senate rules provide for minority rule—requiring 60 votes to stop debate on a bill—even if a majority of senators plan to vote in favor of it. Senators in the minority can use the tactic of the filibuster to prevent passage of any bill. You can be sure that if the senate filibuster was the only thing standing in the way of the Republicans’ desire to pass a nationwide abortion ban, they would dispense with it without a moment’s thought.

Some think that the normal political processes will “surely” balance out the Supreme Court’s radical decision, just as they “surely” thought the Supreme Court wouldn’t scrap a nearly 50-year precedent. But as the jaded Politico writer John Harris pointed out,

All those surelys are a currency with no value in contemporary politics.

That is especially true of the question of what happens next. Many political analysts are predicting that the court ruling will activate progressives in ways that may help Democrats and eventually lead to abortion rights lost in judicial defeats being restored through political victories. Sounds plausible to me. But worth asking how many of those analysts forecasting forecasted Trump’s victory in 2016, or even that he would increase his vote total in 2020.

Perhaps Harris is wrong, but history suggests otherwise. Whatever rights the oppressed have won have never depended on politicians and judges. They have only come from what we fight for from below.