A leaked draft decision written by Supreme Court justice Samuel Alito suggests it’s all but certain Roe v. Wade is about to be overturned. The ruling will immediately make abortion illegal in half the country, and commentators have noted the decision seems designed to encourage Republicans to push for an abortion ban at the national level.
The ruling, which will restrict the autonomy and fundamental rights of tens of millions of women, will be enacted by four or five unelected men and one unelected woman. Such a decision can only be described as authoritarian. (There is some speculation Chief Justice John Roberts might not join the other Republican justices in supporting Alito’s decision.)
If the decision stands, it will be a high-water mark for the Right’s project of undemocratic rule, and will almost certainly give conservatives confidence to further attack democratic institutions and individual rights. As the draft decision shows, the Supreme Court is arguably the most powerful weapon the Right has for ruling without and against the people.
While the Supreme Court is especially insulated from democracy and accountability, this authoritarian impulse has always been at the core of conservatism, and the Right has always had a tenuous relationship to democracy. Historically, it has only acceded to democratic demands kicking and screaming, and it has consistently tried to roll back democratic practices and revert power to unaccountable elites.
As I wrote in December, this project has accelerated significantly since the rise of Donald Trump, both in rhetoric and substance. While the desire to overturn Roe v. Wade long precedes Donald Trump’s presidency, Alito’s decision is best understood in the context of the broader counter-democratic movement that has been picking up steam for the past seven years.
So far, the Right has generally refrained from directly calling for less democracy; nor has it given up on trying to win popular support, especially when it has a virtually unlimited pot of dark money to run elections and to advance the candidacies of Supreme Court justices themselves. Instead, conservatives frame themselves as the true champions of democracy and the victims of cheating or “illegitimate” voters when they lose votes, a tactic the Court itself deployed when it handed George W. Bush the presidency in 2000.
Using these false claims of foul play as a pretext, conservatives then move to restrict access to democratic decision-making to those groups that support them, while making it more difficult for their opponents to vote, assemble, or even teach basic elements of American history. Finally, conservatives push decision-making to those institutions they have already captured through a mix of democratic and undemocratic means. There is little consistency as to why one government entity or another is the proper one to make the decision in question, except that the one conservatives control is always the right one.
Alito’s decision plays into this dynamic. He writes, “Roe and Casey must be overruled and the authority to regulate abortion must be returned to the people and their elected representatives.” Here is the characteristic appeal to democracy, which of course makes no mention of the extensive gerrymandering the GOP has used to all but ensure itself long-term rule despite its diminishing democratic support. Nor does Alito mention the extensive voter suppression the party has engaged in, and which the Supreme Court itself has enthusiastically supported.
Thanks to the Right’s gerrymandering, voter suppression, and campaign finance tactics, many of which accelerated dramatically after favorable rulings from the Supreme Court over the past decade, access to abortion will be greatly restricted by elected officials — which Alito surely knows. This will happen despite wide margins of Americans supporting legal abortion in all or some circumstances, and 59 percent saying that absent Roe, they want state abortion laws that are “more permissive than restrictive.”
There is no reason to think this will get any better, or to expect another outcome when it comes to other important issues. The six Republican Supreme Court justices are among the most powerful right-wing operatives in the country. It’s silly to pretend they are anything else, expect logical or legal consistency, or argue with them in the press as if reason will change their mind.
There is a special sense of helplessness here. Anyone who pays even a little bit of attention to politics knows exactly what will happen, and knows that no one will stop it. The justices will surely continue to find reasons to strike down popular legislation and regulations that were enacted by “the people and their elected representatives,” just as surely as they will find reasons to return questions of individual liberty, voting rights, and freedom of assembly and expression to state governments dominated by conservative extremists sure to restrict them. The legal arguments are bluster and finely written sophistry. It’s all just motivated reasoning for raw power: they’re all for democracy, as long as they can first guarantee that they’ll win.