Liberals and conservatives disagree bitterly about the results of last week’s Supreme Court cases on guns and abortion, but beneath that disagreement about outcomes lies a surprising agreement about process: Some things are too important to be resolved by elections.
In dissent, Justice Stephen G. Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, warned that the court was limiting the ability of “democratically elected officials” to reduce gun violence. Yet in the next day’s abortion ruling overturning Roe v. Wade, the court’s ideological wings switched places. The conservative justices appealed to the virtue of democratic decision-making, which the court’s liberals rejected.
“The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe,” wrote Justice Samuel A. Alito Jr. for the majority in Dobbs v. Jackson Women’s Health Organization, which returned abortion policy to elected lawmakers. The same three liberal dissenters this time offered a soaring endorsement of countermajoritarian governance: “We believe in a Constitution that puts some issues off limits to majority rule,” they wrote in defending a right to abortion. “However divisive, a right is not at the people’s mercy.” The Bruen gun-rights majority might as well have said the same thing.
The court’s divide is not really about “democracy,” as commentators sometimes say. There’s no appetite on the left or right for unrestrained majority rule. The contest instead is over how to identify the issues that can legitimately be placed outside the scope of democratic contestation.
After all, curtailing democracy in some spheres is necessary to its proper functioning in others. If there are no limits on political majorities, then political minorities may “start thinking they’re existentially threatened by the rotation of power,” the political scientist Steven Teles has observed. That could undermine the voluntary acquiescence that makes electoral politics possible.
The Constitution is designed to maintain this balance. In last week’s decisions, the court’s liberal and conservative wings offered very different theories about when the document takes an issue out of the voters’ hands.
For the court’s conservatives, majorities must be constrained by the text of the Bill of Rights. In his Bruen opinion, Thomas offered an even stricter constraint, asserting that any limits on gun rights must be “consistent with the Nation’s historical tradition of firearm regulation,” which can elucidate the Second Amendment’s meaning in the 18th and 19th centuries.
For the court’s liberals, democratic majorities should not be shackled so much by text and tradition, but by the modernizing sensibilities of governing elites in the judiciary and administrative state. In their Dobbs dissent, the liberal justices argued that however constitutional rights were understood when they were ratified, there is room for “evolution in their scope and meaning.”
In this view, the justices’ job is in part to make the Constitution “responsive to new societal understandings and conditions,” such as by maintaining abortion rights outside the democratic process.
A more cynical way of putting this is that democracies need self-justifications, even myths, for abridging majority rule. The originalist justification, expressed by Justice Joseph Story in 1833, is that the Constitution represents the “deliberate will of the people,” carrying more weight than their “momentary ebullitions,” or current preferences. The liberal justification is that modern judges can periodically update the social compact to liberate Americans from the dead hand of the constitutional past.
The power to “withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities,” as the court put it in a 1943 decision, is an awesome but necessary one in a democracy. The Supreme Court’s conservative justices believe that when it comes to abortion, liberal justices have for decades been exercising this power without authorization — a usurpation that has damaged the country’s political institutions.
This sentiment, shared by tens of millions of Americans, contributed to a populist backlash that helped create the current court’s conservative majority. That majority hopes that enforcing the Constitution’s original meaning will put the court on a sturdier political foundation, but it could also invite a popular backlash of its own. It’s a historic experiment that will test the Constitution’s continued alignment with American political life, and our worthiness of its commands.