Every time there is a controversy regarding a Supreme Court ruling, the same set of radical fallacies emerges regarding the role of the Court, the Constitution and how the American republic is designed to function. Each time the Court invalidates a democratically elected law on the ground that it violates a constitutional guarantee — as happened in Roe — those who favor the invalidated law proclaim that something “undemocratic” has transpired, that it is a form of “judicial tyranny” for “five unelected judges” to overturn the will of the majority. Conversely, when the Court refuses to invalidate a democratically elected law, those who regard that law as pernicious, as an attack on fundamental rights, accuse the Court of failing to protect vulnerable individuals.
This by-now-reflexive discourse about the Supreme Court ignores its core function. Like the U.S. Constitution itself, the Court is designed to be an anti-majoritarian check against the excesses of majoritarian sentiment. The Founders wanted to establish a democracy that empowered majorities of citizens to choose their leaders, but also feared that majorities would be inclined to coalesce around unjust laws that would deprive basic rights, and thus sought to impose limits on the power of majorities as well.
Planned Parenthood was founded not simply as an organization for limiting the size of families in general but more particularly to reduce the reproduction of the black population in the United States, as Planned Parenthood founder Margaret Sanger herself noted.
— Thomas Sowell (@ThomasSowell) May 4, 2022
Aaron Sibarium of the Washington Free Beacon has extensively documented the growing radicalism of students at America’s top law schools. They have been trained in forms of activism that place desired outcome over due process, and inculcate contempt for legal procedures and professional norms. As they graduate and take roles at law firms, government bureaus, and high courts, their attitudes will remake our legal system. Their cynicism will spread—not only on the left, but on the right, which will not fail to notice how the system is changing.
One response to this state of affairs is to insist on the rule of law and due process to the exclusion of all else, in hopes that our society can be constituted on the basis of pure neutrality. This is naive. Legal procedures are never perfectly neutral. They are always shaped by the politics of those who wield them, and they are always arranged toward certain ends. That does not make them worthless. It simply means that they become hard to sustain in the face of grave social conflict. In every individual case, justice matters. So does procedural integrity. But due process and rule of law cannot substitute for the shared ends on which social peace depends.
Of course, reaching agreement on shared ends looks all but impossible. America is deeply divided by a culture war that is also a class war. As Christopher Lasch observed, abortion is “first and foremost a class issue.” It condenses far-ranging class differences into a single potent issue. Of Americans with an advanced degree, 72 percent regard abortion as “morally acceptable,” while only 33 percent of Americans with a high school diploma or less agree.