The Supreme Court shouldn't decide on abortion. The fact that it might shows how broken the American political system is.
The big story in American politics lately has been the draft proposal from the Supreme Court of overturning the Roe versus Wade case which functionally established the right to abortions on a federal level back in the 70’s. I’m not very interested in the substantive debate over whether abortions should be allowed or not, I think the case in favour is overwhelming. Instead I’m interested in the idea of conducting politics through legal opinion. The American system is at its basic level built on a system of checks and balances, i.e. a system where different bodies control different levers of power and each oversee the others to control the state from being captured by the “mob” of public opinion. In theory that’s a great system but as the last decade or so has shown the system breaks down when the legislative branch is deadlocked. As Congress is increasingly unable to pass the most basic legislation the other two main branches of government, the judicial and the executive, are forced to pick up the slack despite having neither the tools nor mandate necessary to do so.
The Supreme Court, unlike many other constitutional courts in other democracies, is made up of politically appointed judges which on one hand theoretically makes it more democratic, but on the other hand makes it more susceptible to political pressure. At the time of writing the overturning of Roe versus Wade is only a draft, and may not actually happen. But still, it is in my view deeply troubling that a court of nine judges has the power to dictate social policy for some 300 million people; especially given that judges on the Supreme Court don't need to be reappointed and thus can’t be voted out of office if the electorate disagree with their judgements. Especially in a time when elites and specialists often are viewed with suspicion in American politics it would be a bad move for the Supreme Court to take it upon itself on its authority as legal experts to make decrees on social policy without having a real mandate from the electorate to do so.
Justices on the court are theoretically no less unaccountable than many other public servants, and one could argue that since they are appointed by the sitting president they have a democratic mandate through being confirmed by the Senate, which is in turn made up of democratically elected representatives. The problem with that interpretation is in my view that the turnout in American elections are usually fairly low, e.g. around 66% for the 2020 presidential election. Joe Biden won with 51% of the vote in 2020 with 67% turnout which means a de facto mandate from just over 30% of eligible voters; which means that unless there is broader bipartisan support for Biden’s nominees for the Supreme Court they too should have a de facto mandate from around 30% of the electorate; which shouldn’t be enough to push through far reaching social policies.
To be fair, judges on the Supreme Court wouldn’t need large democratic mandates if they were only debating specific technical legal issues, but as mentioned the Congress’ impotence means that they are given both the opportunity and sometimes the burden of deciding important policy issues. Whatever you think of the merits of Roe versus Wade, it is troubling that a court gets to decide the rules on abortion in America; a clear sign of the ill health of American political institutions. It would be best for everyone if the court left social policy to the legislative branch.
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I've always been interested in politics, economics, and the interplay between. The blog is a place for me to explore different ideas and concepts relating to economics or politics, be that national or international. The goal for the blog is to make you think; to provide new perspectives.
Written by Karl Johansson
Cover phot by EKATERINA BOLOVTSOVA from Pexels, edited by Karl Johansson
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