SCOTUS and a Skewed Notion of Democratic Governance

• In Event: Understanding the Courts in a Post-Dobbs Era

Abstract

Since the appointment of Chief Justice John Roberts, Jr. to the U.S. Supreme Court, he along with the ideologically conservative members of the court have been praised by several commentators for a ‘democratic revival’ by returning issues to the democratic decision-making process and away from judicial fiat. Associate Justice Alito’s majority opinion in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022) is archetypical of this approach. Alito quotes the late Associate Justice Scalia, “[T]he permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). The majority opinion proceeds to remove the right of women to control their reproductive functions from U.S. Constitutional protection and returns the issue to the democratic process of each state. While much has been written about the conservative tilt of our current federal judiciary and the wisdom of such opinions, little discussion exists concerning the form of ‘democracy’ these opinions, taken as a whole, consider ideal for America. An examination of opinions in this area over the past twenty years reveals a particular form of democracy that limits citizen input to preferred constituencies and selected means while elevating speech and action by a particularized set of political interests. In addition, the political mechanisms of democracy are constrained in a series of ways that pervert the ability of these institutions to reflect the consensus of the general population. This work builds upon the recent scholarship of NeJaime and Siegel (2021) and Murray and Shaw (2024) in suggesting the current court’s consideration of democracy is “shallow, underdeveloped, and profoundly cynical” (Ibid, p. 763). In addition, as suggested by Grumback (2023), such a purposeful constrained notion of democracy is rapidly being accepted and promoted within states controlled by conservative elements. In total, these efforts do not signal a true democratic revival but instead highlight a form of democracy that is more symbolism than substance. The implications on the vitality of American democracy and the role of the courts are considered herein with projections on coming pronouncements from our courts.

Grumbach, J. (2023). Laboratories of Democratic Backsliding. American Political Science Review, 117(3), 967-984.
Murray and Shaw (2024). Dobbs and Democracy, Harv. L. Rev. 137(3), 730-807.
NeJaime, D., & Siegel, R. (2021). Answering the Lochner Objection: Substantive Due Process and the Role of Courts in a Democracy. NYUL Rev., 96, 1902.

Author

• Peter R. Yacobucci, Buffalo State University