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

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For nearly half a century, Republicans have railed against “unelected judges” making rulings that they claim disenfranchise voters from deciding for themselves what laws should govern hot-button issues.

But since the release this week of a draft Supreme Court opinion that would overturn the long-standing constitutional right to abortion, Democrats have been the ones embracing that complaint, flipping the script as the party vents its frustration with elements of the U.S. system that have empowered a minority of the country’s voters to elect lawmakers who have successfully reshaped the high court.

House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Charles E. Schumer (D-N.Y.) denounced the apparent conservative majority behind the draft opinion as “in no way accountable to the American people.” Rep. Jamie B. Raskin (D-Md.) described them as “handpicked and gerrymandered by theocrats and autocrats.” Sen. Elizabeth Warren (D-Mass.) cast the document as the culmination of a conservative effort to gain a “majority on the bench who would accomplish something that the majority of Americans do not want.”

A leaked draft opinion on May 2 shows that the Supreme Court is poised to overturn federal abortion protections. Here’s what would happen. (Video: Joshua Carroll/The Washington Post)

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

To conservatives, it all feels familiar, an echo of their persistent demands that matters such as abortion be left to the states — and their voters — to decide.

“It actually sounds like they took my talking points from when I ran for the Senate in 2002,” said Tony Perkins, the Christian conservative president of the Family Research Council, who has pushed for decades to outlaw abortion. “What they are saying is what Republicans have said for years.”

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

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

To 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 public’s energy by running and campaigning against the Supreme Court’s power — and Democrats are slowly adopting that role,” said Brian Fallon, the executive director of Demand Justice, a liberal group that supports expanding the court’s size to overcome 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.”

The Democratic anger is anchored in structural advantages Republicans have recently enjoyed that grant them power disproportionate to their public support.

Democrats have won the popular vote in seven of the past nine presidential contests, a stretch covering more than three decades, during which all the present Supreme Court justices were appointed. But Republicans won four of those nine elections in the electoral college. And they have appointed six of nine current justices. Two Republican presidents, Trump and George W. Bush, who appointed five justices between them, won elections in which they received fewer total popular votes than their opponents.

Republican power in the Senate, which must confirm Supreme Court nominations, has similarly been enhanced by constitutional provisions that give states an equal number of representatives in Congress’s upper chamber, regardless of population. Wyoming, with just over a half-million people, has the same number of senators — two — as California, which is home to nearly 40 million.

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

The 50 Republican senators now serving received 63 million votes in their most recent elections, while the 50 Democratic senators were the preference of 87 million voters, according to a calculation by Michael Ettlinger, director of the Carsey School of Public Policy at the University of New Hampshire.

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

Several nominees strongly hinted during their confirmation hearings that they were inclined to let precedent stand, especially if it had been affirmed, like Roe v. Wade, by subsequent decisions. But if the draft opinion leaked this week becomes the court’s ruling, even some Republicans have said they will feel misled.

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

Sen. Lisa Murkowski (R-Alaska) said the draft opinion, if indicative of the court’s eventual ruling, “rocks my confidence in the court right now.”

Public opinion on abortion has remained rather stable in the 49 years since the court ruled on Roe v. Wade. According to Gallup, 21 percent of Americans thought abortion should be illegal in all circumstances in 1975, compared with 19 percent in 2021. Twenty-two percent thought abortion should be legal under any circumstance in 1975, compared with 32 percent in 2021. The plurality — 54 percent in 1975 and 48 percent in 2021 — said abortion should be legal under certain circumstances.

But the prospect of overturning Supreme Court precedent yields a more definitive polling result. A Washington Post-ABC News poll conducted last week found that 54 percent of Americans think the 1973 Roe decision should be upheld, while 28 percent believe it should be overturned — about a 2-to-1 margin. That matches other recent polls that have shown significant support for maintaining the legal status quo.

Despite the national picture broadly in favor of Roe, conservatives have argued for decades that the court should get out of the way and let popular will prevail in the states. In their view, Roe v. Wade, which mandated that women have the basic right to abortion, obstructed the ability of state legislatures and governors to make their own determinations.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Justice Samuel A. Alito Jr. writes in the draft opinion leaked Monday. The Supreme Court, in a statement, confirmed that the document was “authentic,” while emphasizing that it did not represent the final position of the court or any of its members.

If the court does overturn Roe, 13 states have laws that would ban or curtail abortion immediately. Four other states, including Michigan and Wisconsin, which have Democratic governors and attorneys general, have laws on the books from before 1973 that ban abortion and would again become enforceable.

A decision to overturn Roe v. Wade would upend the midterms

Democrats say Republicans have drawn legislative lines in some of these states in a gerrymandered way that thwarts the popular will. Republicans in Michigan, for example, have regularly won fewer votes in legislative elections over the past decade, while nonetheless maintaining their governing majority because of district lines.

“If Wisconsin was not one of the most gerrymandered states in the nation, Democrats would do everything we could to pass a bill overturning the criminal abortion ban,” said Rep. Greta Neubauer, the Democratic minority leader in the State Assembly. “Wisconsin has a criminal abortion ban on the books from 1849, which has no explicit exemptions for rape or incest.”

As the battle over abortion intensifies in the states, the federal judiciary has been left badly bruised by decades of strife over the issue.

Chief Justice John G. Roberts Jr.’s quest to burnish the institutional legitimacy of the high court in the minds of the American people, in particular, has suffered.

He came into office announcing in 2007 that he aimed “to keep any kind of partisan divide out of the judiciary,” and as recently as 2018, he went so far as to rebuke Trump for describing federal courts as partisan bodies where rulings could be determined by partisan appointments.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a 2018 statement reasserting the court’s impartiality.

Supreme Court will investigate leaked draft of abortion opinion

Yet with both parties now critical of the judiciary, there is little evidence that his efforts will turn the tide.

Even if conservatives get their way and Roe is overturned, they have signaled no interest in stepping back from the judicial battles that have served them well in recent decades.

“The pro-abortion lobby wrecked the judicial confirmation process, debased the civic discourse, and now is intent on destroying the federal judiciary,” said Ralph Reed, founder of the conservative Faith and Freedom Coalition, “all in the name of preserving a regime of abortion on demand imposed on the country by judicial fiat.”

Democrats, meanwhile, say they are braced for the court to possibly overturn other precedents, including ones that expanded rights for gay Americans, women and people of color.

“Through most of U.S. history, there has been a shared stake among elite political actors in preserving the Supreme Court as an institution that is held out as being separate from and above politics,” said Richard H. Fallon Jr., a Harvard Law School professor.

He said he sees that tradition eroding. “Certainly at no point in my lifetime,” Fallon said, “has the Supreme Court been more vulnerable than it is right now.”

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