By Dan Kennedy • The press, politics, technology, culture and other passions

The Supreme Court’s vote to uphold the Texas abortion law is an affront to democracy

Photo (cc) 2006 by OZinOH

In analyzing the U.S. Supreme Court’s 5-4 vote not to overturn Texas’ drastic new abortion restrictions, a number of commentators have focused on the role played by the three justices nominated by Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

All three, needless to say, are wildly controversial. Gorsuch was chosen after then-Senate majority leader Mitch McConnell refused even to take up Barack Obama’s nomination of Merrick Garland, who’s now attorney general. Kavanaugh was confirmed despite serious and credible allegations of sexual assault. Barrett was rushed through before the 2020 election following the death of Ruth Bader Ginsburg.

But there is a more systemic problem, and that’s the failure of democracy that made last’s week’s decision possible. Trump, as we all know, lost the popular vote to Hillary Clinton in 2016 by about 3 million votes. He won only because the Electoral College, a relic of slavery, provides small rural states with disproportionate power. Yet he got to appoint one-third of the current court.

Moreover, all three of Trump’s justices were confirmed by a Senate controlled by the Republicans even though they represented fewer people than the Democrats. Gorsuch and Kavanaugh were confirmed during the first two years of Trump’s term, when the Democratic senators represented 56% of the population nationwide compared to the Republican share of 44%. That margin had narrowed slightly by the time Barrett was confirmed, but 53% of the population was still represented by Democratic senators compared to 47% by Republicans. (See my analysis.)

The other two justices who voted to uphold the Texas law were Clarence Thomas, appointed by George H.W. Bush, who was a majority president, and Samuel Alito, appointed by George W. Bush during his second term, which he won by a majority after losing the popular vote the first time around. But that’s just two votes. If Obama and Clinton had named three justices instead of Trump, it’s easy to imagine that the Texas law would have been suspended by a 7-2 vote. It’s just as easy to imagine that the Texas legislature wouldn’t have passed such a perverse and draconian law in the first place.

This is not democracy. Nor is it republicanism, since a properly designed republic is supposed to represent a majority of the electorate by proxy. It’s fair to ask how long this can go on before the majority stands up and demands an end to government by the minority.

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  1. Republicans have won the popular vote ONCE in the last 30 years.

  2. Steve Ross

    And don’t forget to thank Ralph Nader and the Green Party, both stalking horses dependent on contributions from Republican doners.

  3. Deborah Nam-Krane

    There have been several decisions over the last couple of years that have reminded me of the far too many who insisted that there was no difference between Hillary Clinton and Trump. Curious to see if they feel the same way now.

    • Steve Ross

      There was a huge difference between Trump and Clinton even without considering the impact on the Supreme Court. But gee, her email… . Seriously, Trump tried to defraud my late first wife (who led a team at Nikko Securities that was planning to sell him a hotel) and my cousin (who successfully defended an insane lawsuit brought against her employer by Trump). Yet I have inlaws who vote Green because “the Democrats are not socialistic enough so why settle.” Even after Trump and given the existential threat Republicans still pose to democracy itself, they won’t change.

      • Deborah Nam-Krane

        I understand the appeal of the Green Party only until I look at the candidates. Jill Stein was as ridiculous as Gary Johnson. I don’t see how anyone could seriously think that she would be able to push any of the Green agenda through Congress.

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