Those who seek to destroy or delegitimize the Supreme Court for upholding the Constitution are no better than those who desire to overturn or delegitimize presidential elections. In fact, they probably pose a greater long-term threat to American “democracy.”
Now, if you believe the above contention is hyperbole, consider that many leftists aren’t merely advocating for court-packing or nullification of the Dobbs decision; they justify those attacks with a litany of other grievances about the constitutional order.
Even as the Supreme Court relinquished its power, and threw the abortion issue–unmentioned anywhere in the Constitution–back to the voters, a horde of j-school graduates and politicians, either ignorant of basic civics or contemptuous of them, descended with panic-stricken warnings about the demise of “democracy.” Almost none of their objections were grounded in any sort of legal arguments about the alleged constitutionality of terminating unwanted human beings. Instead, their case centered around the specious idea that the court had undermined the will of voters by no longer dictating abortion policy by judicial fiat.
Rep. Alexandria Ocasio-Cortez, who, at this point, sounds virtually indistinguishable from Senate leadership or the authoritarians writing at The Washington Post, points out that seven of the nine justices on the court “were appointed by a party that hasn’t won a popular vote more than once in 30 years,” that one of their seats “was stolen,” and that “several lied to Congress to secure their appointment…”
None of those contentions are true. Every single justice on the court, including the ones Democrats preemptively smeared as deviants to undermine the legitimacy of the court, was nominated using the prescribed constitutional method that is used by every party. And every senator who voted to confirm those justices did so using the only legal process available to them. The “popular vote” is not a real thing.
When Democrats win both the Senate and the White House, they have the power to nominate and confirm any justice they desire. But they also seem to be under the impression that when they win only the White House, they’re still authorized to dictate whom Republicans are allowed to confirm (as was the case with Merrick Garland). And when they are completely out of national power, they simply reject the legitimacy of justices who do not meet their invented, evolving, extraconstitutional standards. Democrats treat every victory of the opposition as dubiously attained.
“The Founding Fathers wrote a constitution designed to prevent a tyranny of the majority,” says former Barack Obama adviser David Axelrod. “But what happens when you have a tyranny of the minority, gaming the system to promote a radical agenda that flouts the will of the majority under the guise of constitutionalism?” Similar assertions were repeated across the left-wing punditsphere this weekend.
Axelrod, in true Obama fashion, begs the question. But the fact that the Electoral College doesn’t align with the “popular vote” isn’t a disqualifying aspect of American politics, it is the very point. If the Electoral College always synchronized with the outcome of the nonexistent direct democratic national tallies, it wouldn’t need to exist. It isn’t a loophole; it is a deliberately created mechanism that stops a handful of states from dominating policy. (Not only is the national vote immaterial, but we really have no idea what one would look like because (winning) candidates do not run up scores in big states, they campaign nationally.)
Though I do wonder what remedy Axelrod or Ocasio-Cortez have in mind for this supposed problem? Should the GOP abdicate the presidency to a Democrat every time it fails to win the nonexistent “popular vote”? Should Republican senators from smaller states ignore their constituents and ask Elizabeth Warren for permission to support judicial nominees? Sounds like one-party rule.
None of this is to even mention that a lack of national legislation on an issue isn’t a “tyranny of the minority.” It’s federalism. There is no other way to keep a sprawling, geographically, ethnically, culturally, religiously diverse nation free and self-governing. That’s why enumerated powers exist. And that’s also why the increasingly radical progressive left is obsessed with getting rid of the filibuster, the only thing preserving some semblance of legislative limitation on federal power. The only people who refer to federalism as “minority rule” are people who believe that Americans need to be “ruled” over in the first place. Indeed, the court did not stop Illinois from making its own abortion policies. It’s Axelrod who wants the court to compel, by edict, abortion policy in states like Mississippi.
Democrats want the Supreme Court, created to adjudicate the constitutionality of laws free from political pressures, to follow public opinion polls. The only way we can truly know how voters feel about abortion is by subjecting the issue to the democratic process. Whether Roe, a legal decision, is popular is irrelevant–though it’s unsurprising the majority of Americans, after decades of media championing abortion, know little about it. Because, at some point, voters will decide if the Democratic Party’s new position, government-funded abortion on demand until crowning, or the position of states like Mississippi, 15 weeks bans, are more “radical.”
When the Supreme Court concocted the constitutional “right” to abortion in 1973, the pro-life movement didn’t promise to dismantle the system; rather it spent 50 years creating an intellectual and political movement that would begin to restore proper constitutional limits. They voted for presidents who promised to put textualists on the bench and elected senators who would confirm them. If you’re unhappy with those rules, you are free to amend the Constitution. But, for the contemporary left, “democracy” isn’t just a euphemism for “policies we support” anymore, it’s a pernicious belief that Republicans have a responsibility to live in a political system that exists outside of the Constitution. And a system with two sets of rules is untenable.