20 The Economist May 7th 2022
BriefingAmerica’s Supreme Court
B
ig newsfrom America’s Supreme Court
usually arrives in late June, when the
most contentious rulings of the year are re
leased. But on May 2nd a legal bombshell
was delivered two months early, and in un
precedented fashion. Politico, a news web
site, published a leaked draft of an opinion
overruling Roe v Wade,the precedent that
has enshrined a constitutional right to
abortion for nearly 50 years. The draft,
which the chief justice, John Roberts, later
confirmed was genuine, appeared to have
the support of five of the nine justices,
enough to make it the law of the land. If
that majority holds when the ruling is offi
cially released, states would be free to ban
abortion altogether. Thirteen have already
done so, pending just such a ruling.
It is not clear who leaked the draft or
why. Justices can change their votes up un
til the moment a ruling is made public, so
Roe is not necessarily doomed. What is cer
tain is that a reversal of Roe would invite
howling from the left and exultation from
the right. Although many jurists consider
Roe’s reasoning flawed, voiding it wouldstill be a shocking step, in that it would run
counter to public opinion and lead to the
prohibition in many states of a procedure
that almost a quarter of American women
seek at some point in their lives—all for no
more pressing reason than because the
composition of the court has changed.
And abortion is by no means the only
controversial topic the justices have taken
up. They are also about to release decisions
on gun rights, the federal government’s
regulatory powers and the separation of
church and state. Next year affirmative ac
tion will be under review. If they shift
American law to the right in all these areas,
growing numbers of Democrats are bound
to denounce them as unelected, unrepre
sentative and illegitimate cat’s paws of the
right. The court risks being seen as just an
other manifestation of America’s extreme
partisanship, and treated accordingly.
Should its authority be undermined in this
way, it is not much of a stretch to imagine a
Democratic governor, say, refusing to en
force an order of the court—or a Democrat
ic candidate refusing to accept its judgment in an election dispute.
Nine berobed judges striking down
laws approved by elected politicians poses
a “countermajoritarian difficulty”, wrote
Alexander Bickel, a legal theorist, in 1971,
after the court under Chief Justice Earl
Warren had expanded judicial power in the
1950s and 1960s. But Robert Dahl, a political
scientist, believed any gulf between popu
lar opinion and the positions of the Su
preme Court was bound to be bridged rela
tively quickly. “The policy views dominant
on the court,” Dahl wrote in 1957, “are never
for long out of line with the policy views
dominant among the lawmaking major
ities of the United States” as presidents
“can expect to appoint about two new jus
tices during one term of office”. This might
not be enough to rebalance a listing court
in four years, but presidents are “almost
certain to succeed in two terms”.Terms of entrenchment
Recent decades suggest this confidence
was misplaced. For 25 years the pace of ap
pointments was half of what Mr Dahl
thought normal. Bill Clinton, George W.
Bush and Barack Obama all averaged only
one per term. When Antonin Scalia, a con
servative, died in 2016, it briefly looked as
though Mr Obama would be able to move
the court to the left. But within hours of
Scalia’s death, Mitch McConnell, the leader
of the Republicans in the Senate, placed a
blockade on the seat and refused to allow a
vote on Merrick Garland, Mr Obama’s pick.N EW YORK
The nine justices face a crisis of legitimacyA countermajoritarian difficulty