Reflections on Federalism, Democratic Responsibility and a Leaked Supreme Court Decision
Whatever one’s personal understanding of the ethical and moral issues at play concerning the issue of abortion, the recently leaked draft U.S. Supreme Court opinion overturning Roe v. Wade and the Constitutional right to privacy it has guaranteed American women for nearly 50 years has sparked widespread discussion and protest.1 The Court majority justified its argument on two primary grounds: first, on the basis of federalism; that is, that the issue is properly the province of the states and not the nation. Second, the opinion, written by Justice Samuel Alito, argued that the Court had overstepped its authority when it decided the Roe case and later when it revisited it in the Planned Parenthood of Southeastern Pa. v. Casey decision especially.2 It seems reasonable therefore to analyze how Alito pressed his claims on each of these key concerns, and I do so with an eye to their broader implications when considered in the context of our country’s ongoing democratic crisis.
Here is Alito’s principal argument regarding states as the appropriate venue to address reproductive and, more broadly, personal civil and human rights:
Ordered liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed ‘potential life.’ But the people of the various States may evaluate those interests differently. In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’ Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.3
The obvious outcome of the Court’s argument linked to federalism, should it stand, is that many states will continue to permit abortion under various strictures and others will deny that possibility to women, even when they were raped, their lives are in danger or when incest created their pregnancy. Indeed, many analysts have turned to outlining just such realities since the draft became public. With 71 percent of Americans in a recent Pew Charitable Trusts Research Center poll reporting they did not want to see abortion become unavailable, Republican Party officials, facing widespread protests at the possible repeal of Roe, have suggested publicly that the Court’s opinion would actually change little because women wishing to obtain an abortion where such had been declared illegal could still do so in another state.4 Nonetheless, whether the nation should permit a patchwork of law and regulation on this issue across the states is not alone a matter of varying state laws or of whether one possesses resources to travel to obtain such services (an in-built inequity in such arguments). It is more deeply a matter of how one regards freedom and equality.
Our nation today, for example, permits huge inequalities in support for elementary and secondary as well as higher education across the states and there is continuing argument that those marked differences matter for student opportunity structures. Our country does the same concerning how individuals with mental illnesses or impairments or those who are poor are treated. Support for these groups varies tremendously across the states, even accounting for the relative differences in wealth among those jurisdictions. In those cases, as in the present one, the issue is just how much inequality, inequity and injustice should be tolerated for United States citizens in the name of the pluralism that federalism was created, in part, to address. The draft opinion does not acknowledge ongoing widespread and appropriate debate concerning this central concern. Instead, it contends that the Court cannot reach it and should actively foreswear considering it. And yet, the United States is comprised of one people, not 50, and that population has sworn to seek to uphold freedom and equality for all its citizens and not simply those possessing characteristics viewed favorably by those presently in power.
On this point, it is well to recall that the principal political reason our nation’s Founders embraced federalism was to secure a political check on the well-known frailty and possible excesses of popular rule.5 While they were certainly aware of the strengths and weaknesses of decentralized governance for administrative organization and service delivery, federalism was created for larger political reasons. The Founders argued that each level of constitutional government—state and federal—would be positioned well to guard against the possible development of tyranny in either. The states could petition the nation to secure against federally sanctioned despotism and the nation could certainly exercise power to prevent or overcome state-level threats to citizen liberties. In fact, however, it must be said that it is easier to galvanize a local or regional population to tyrannical action than to mobilize a much broader national citizenry to such acts. Put bluntly, the United States government historically has far more often checked state curtailments of freedom than the reverse has obtained. The era of Jim Crow in the South provides a heinous, but apt, example, as do the current actions of 19 GOP-controlled state legislatures to limit voting access for groups that those officials fear will not support their banner on grounds of baseless claims of voting fraud.6 Nonetheless, it is surely possible in principle for the states to check despotic national action. And it was this mutual political capacity to act to ensure freedom and individual rights, along with the obvious advantages states enjoyed in responding to the localized needs of their populations, that the Founders found most powerfully attractive about federalism.
Notably this argument does not relieve the national government, the only representative of the sovereign—the people collectively—of its responsibility to ensure the civil and human rights and equitable treatment of all members of its population. And the Supreme Court is an integral part of the federal government. Nonetheless, this draft opinion finds the Court content not merely to point up likely large differences in state treatment of women on the issues it addresses, but to embrace these disparities as appropriate without acknowledging they could well constitute abridgments of rights and ongoing enshrinement of injustice. In short, the opinion highlights inequality and then celebrates that fact by arguing that the Court cannot reach the concern. This seems both a misunderstanding of the strengths and frailties of federalism and a profound misunderstanding of the role of the nation in ensuring the civil and human rights of its citizenry.
I turn now to Alito’s argument concerning judicial “overreach” as it related to Roe and its follow-up in Casey:
Rather, wielding nothing but ‘raw judicial power,’ the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side-those who sought to advance the state’s interest in fetal life could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.7
This contention raises at least two interesting questions. First, it is by no means clear that the Roe Court wielded “raw judicial power” to render its decision. Alito does not define the term, but it appears to imply ideological disagreement with the previous court’s reasoning. Such should hardly prima facie constitute grounds for overturning the prior ruling. More importantly, Alito’s contention that the Roe Court’s holding prevented advocates for a change in policy from pressing their claims is absurd. Not only has that minority done so vocally and in highly organized fashion for decades, its various constituent elements, including evangelical Christian churches and right-leaning Roman Catholics particularly, have, since Ronald Reagan’s presidency, become the most significant political faction in the GOP. More broadly, Alito’s draft states clearly that the Court cannot assume responsibility for any consequences its choices may bring in train, ignoring in so doing the present democratic crisis in which the nation finds itself. It is this element of the opinion particularly, which seems both outrageously obtuse.
As the long-time journalist Dan Rather has argued in recent days, the attempted coup on January 6, 2021, which Donald Trump orchestrated and the GOP now formally embraces; the Party’s incessant demagogic attacks on minority groups, especially, notably, at the state level; its willingness to lie ceaselessly concerning completely fabricated “stolen elections” claims; and the fact that its officials broke all precedent to ensure confirmation for two members of the Supreme Court majority now willing to overturn Roe, have worked to intensify the governance crisis the country now confronts:
Our very democracy is at stake. This conflict isn’t just about policy preferences on taxes, social security, or gun control, although those and similar such issues are all vitally important. Ellen is alluding to the fear, widely felt and completely warranted, that our democratic institutions are at risk. Plenty of candidates currently running for office are spreading lies about ‘stolen elections,’ even as they lay the groundwork to steal future ones. People already in positions of power are using gerrymandering, obstruction, and an endless pipeline of bad faith to undercut the will of the people. If these forces achieve even more power, America as we know it may be lost.8
In sum, the draft opinion in this case signals the Court majority’s willingness to accept a growing democratic calamity as its majority abandons any pretense of ensuring the equal protection of the law and equality of opportunity for this nation’s women in the realm of reproductive rights in favor of ceding that role to whatever specific states may choose to provide. Unfortunately, history teaches that many of those states have a very poor record of protecting individual freedoms and, in any case, today’s GOP is presently vigorously attacking them as they pertain to selected groups. In that political environment it seems especially cruel to pretend the wisdom of a course that broadly increases the latitude for action for such actors. Should this opinion stand, which now seems likely, it will make it still more difficult for the majority of citizens to overcome the willingness of a determined and institutionally sanctioned minority to impose its beliefs on them. In the same piece cited above, Rather argued:
I believe the majority of Americans want to live in a country where election results are respected. I believe a majority want to see our democratic principles preserved and even expanded. I believe a majority would recoil at the sheer audacity of those who would rather undercut our electoral system than compete for the votes of the American people.9
While I personally agree with Rather, one need not do so to be concerned that this decision suggests that we now have a Court majority indifferent to this vital set of concerns as it serves its ideological predispositions and blindness. In this regard, the Northern Ireland writer Pádraig ÓTuama has offered a poem suggesting that his fellow citizens and, indeed, all human beings face two enduring questions:
And at the end of the day,
the reality is
that whether we
or whether we stay
these questions will
Who are we
How are we
This leaked Supreme Court opinion highlights the critical character of these questions for our fractured nation. Shall our national institutions abdicate their responsibilities to protect the civil rights of all of the citizens of a polity in crisis, and in doing so risk self-governance itself (who we shall be with one another) in favor of serving the demagoguery, tortured ideology and anxieties of a minority (one group shall rule)? The majority of the members of this Court has signaled its answer. While there can be no single response to this cruel paradox, it seems clear that all Americans who care about civil and human rights should continue to do all they can including, of course, voting, to push back against those calling for a priori limiting the rights of targeted groups in principle or in practice.
1 Roe v. Wade, 410 U.S. 113 (1973)
2 Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992).
3 Blake, Aaron. “The Supreme Court’s Draft Opinion on Overturning Roe V. Wade, Annotated,” The Washington Post, May 3, 2022, https://www.washingtonpost.com/politics/interactive/2022/dobbs-alito-draft-annotated/, Accessed May 3, 2022.
4 Pew Research Center, “America’s Abortion Quandary,” May 6, 2022, https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/, Accessed May 6, 2022; Weisman, Jonathan. “G.O.P. Lawmakers Recast Abortion Stance, Wary of Voter Backlash,” The New York Times, May 6, 2022, https://www.nytimes.com/2022/05/06/us/politics/republicans-abortion.html, Accessed May 6, 2022.
5 Beer, Samuel H. To Make a Nation: The Rediscovery of American Federalism. Cambridge, Mass.: Belknap Press, 1993.
6 Brennan Center for Justice. “This Year’s Tidal Wave of Restrictive Voting Legislation will Continue in 2022,” January12, 2022, https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-december-2021, Accessed May 14, 2022.
7 Blake, “The Supreme Court’s Draft Opinion.”
8 Rather, Dan and Elliot Kirschner. “What Else Can We Do?” Steady, May 15, 2022, https://steady.substack.com/p/what-else-can-we-do?utm_source=email&s=r, Accessed May 15, 2022.
9 Rather and Kirschner, “What Else Can We Do?”
10 Padráig Ó Tuama,” [the] north[ern] [of] Ireland,” On Being, April 11, 2019, https://onbeing.org/poetry/the-northern-of-ireland/?eType=EmailBlastContent&eId=bbb8b537-9e3e-4f5b-96df-ddd8f31dd8cf, Accessed May 12, 2022.
May 16, 2022