Glenn Greenwald
Politics • Culture • Writing
The Irrational, Misguided Discourse Surrounding Supreme Court Controversies Such as Roe v. Wade
The Court, like the U.S. Constitution, was designed to be a limit on the excesses of democracy. Roe denied, not upheld, the rights of citizens to decide democratically.
October 06, 2022
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Protesters gather outside the U.S. Supreme Court on May 03, 2022, in Washington, DC, after a leaked initial draft majority opinion obtained by Politico, in which Supreme Court Justice Samuel Alito allegedly wrote for the Court's majority that Roe v. Wade should be overturned (Photo by Anna Moneymaker/Getty Images)

Politico on Monday night published what certainly appears to be a genuine draft decision by Supreme Court Justice Samuel Alito that would overturn the Court's 1973 decision in Roe v. Wade. Alito's draft ruling would decide the pending case of Dobbs v. Jackson Women's Health Organization, which concerns the constitutionality of a 2018 Mississippi law that bans abortions after fifteen weeks of pregnancy except in the case of medical emergency or severe fetal abnormalities. Given existing Supreme Court precedent that abortion can only be restricted after fetal viability, Mississippi's ban on abortions after the 15th week — at a point when the fetus is not yet deemed viable — is constitutionally dubious. To uphold Mississippi's law — as six of the nine Justices reportedly wish to do — the Court must either find that the law is consistent with existing abortion precedent, or acknowledge that it conflicts with existing precedent and then overrule that precedent on the ground that it was wrongly decided.

Alito's draft is written as a majority opinion, suggesting that at least five of the Court's justices — a majority — voted after oral argument in Dobbs to overrule Roe on the ground that it was “egregiously wrong from the start” and “deeply damaging.” In an extremely rare event for the Court, an unknown person with unknown motives leaked the draft opinion to Politico, which justifiably published it. A subsequent leak to CNN on Monday night claimed that the five justices in favor of overruling Roe were Bush 43 appointee Alito, Bush 41 appointee Clarence Thomas, and three Trump appointees (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett), while Chief Justice Roberts, appointed by Bush 43, is prepared to uphold the constitutionality of Mississippi's abortion law without overruling Roe.

Draft rulings and even justices’ votes sometimes change in the period between the initial vote after oral argument and the issuance of the final decision. Depending on whom you choose to believe, this leak is either the work of a liberal justice or clerk designed to engender political pressure on the justices so that at least one abandons their intention to overrule Roe, or it came from a conservative justice or clerk, designed to make it very difficult for one of the justices in the majority to switch sides. Whatever the leaker's motives, a decision to overrule this 49-year-old precedent, one of the most controversial in the Court's history, would be one of the most significant judicial decisions issued in decades. The reaction to this leak — like the reaction to the initial ruling in Roe back in 1973 — was intense and strident, and will likely only escalate once the ruling is formally issued.

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.

The Federalist Papers are full of discussions about the dangers of majoritarian excesses. The most famous of those is James Madison's Federalist 10, where he warns of "factions…who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” One of the primary concerns in designing the new American republic, if not the chief concern, was how to balance the need to establish rule by the majority (democracy) with the equally compelling need to restrain majorities from veering into impassioned, self-interested attacks on the rights of minorities (republican government). As Madison put it: “To secure the public good, and private rights, against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our enquiries are directed.” Indeed, the key difference between a pure democracy and a republic is that the rights of the majority are unrestricted in the former, but are limited in the latter. The point of the Constitution, and ultimately the Supreme Court, was to establish a republic, not a pure democracy, that would place limits on the power of majorities.

Thus, the purpose of the Bill of Rights is fundamentally anti-democratic and anti-majoritarian. It bars majorities from enacting laws that infringe on the fundamental rights of minorities. Thus, in the U.S., it does not matter if 80% or 90% of Americans support a law to restrict free speech, or ban the free exercise of a particular religion, or imprison someone without due process, or subject a particularly despised criminal to cruel and unusual punishment. Such laws can never be validly enacted. The Constitution deprives the majority of the power to engage in such acts regardless of how popular they might be.

And at least since the 1803 ruling in Madison v. Marbury which established the Supreme Court's power of "judicial review” — i.e., to strike down laws supported by majorities and enacted democratically if such laws violate the rights guaranteed by the Constitution — the Supreme Court itself is intended to uphold similarly anti-majoritarian and anti-democratic values.

When the Court strikes down a law that majorities support, it may be a form of judicial tyranny if the invalidated law does not violate any actual rights enshrined in the Constitution. But the mere judicial act of invalidating a law supported by a majority of citizens — though frequently condemned as “undemocratic" — is, in fact, a fulfillment of one of the Court's prime functions in a republic.

Unless one believes that the will of the majority should always prevail — that laws restricting or abolishing free speech, due process and the free exercise of religion should be permitted as long as enough citizens support it — then one must favor the Supreme Court's anti-democratic and anti-majoritarian powers. Rights can be violated by a small handful of tyrants, but they can also be violated by hateful and unhinged majorities. The Founders’ fear of majoritarian tyranny is why the U.S. was created as a republic rather than a pure democracy.

Whether the Court is acting properly or despotically when it strikes down a democratically elected law, or otherwise acts contrary to the will of the majority, depends upon only one question: whether the law in question violates a right guaranteed by the Constitution. A meaningful assessment of the Court's decisions is impossible without reference to that question. Yet each time the Court acts in a controversial case, judgments are applied without any consideration of that core question.


The reaction to Monday night's news that the Court intends to overrule Roe was immediately driven by all of these common fallacies. It was bizarre to watch liberals accuse the Court of acting “undemocratically" as they denounced the ability of "five unelected aristocrats” — in the words of Vox's Ian Millhiser — to decide the question of abortion rights. Who do they think decided Roe in the first place?

Indeed, Millhiser's argument here — unelected Supreme Court Justices have no business mucking around in abortion rights — is supremely ironic given that it was unelected judges who issued Roe back in 1973, in the process striking down numerous democratically elected laws. Worse, this rhetoric perfectly echoes the arguments which opponents of Roe have made for decades: namely, it is the democratic process, not unelected judges, which should determine what, if any, limits will be placed on the legal ability to provide or obtain an abortion. Indeed, Roe was the classic expression of the above-described anti-majoritarian and anti-democratic values: seven unelected men (for those who believe such demographic attributes matter) struck down laws that had been supported by majorities and enacted by many states which heavily restricted or outright banned abortion procedures. The sole purpose of Roe was to deny citizens the right to enact the anti-abortion laws, no matter how much popular support they commanded.

This extreme confusion embedded in heated debates over the Supreme Court was perhaps most vividly illustrated last night by Waleed Shahid, the popular left-wing activist, current spokesman for the left-wing group Justice Democrats, and previously a top aide and advisor to Squad members including Rep. Alexandria Ocasio-Cortez. Shahid — who, needless to say, supports Roeposted a quote from Abraham Lincoln's first inaugural address, in 1861, which Shahid evidently believes supports his view that Roe must be upheld.

But the quote from Lincoln — warning that the Court must not become the primary institution that decides controversial political questions — does not support Roe at all; indeed, Lincoln's argument is the one most often cited in favor of overruling Roe. In fact, Lincoln's argument is the primary one on which Alito relied in the draft opinion to justify overruling Roe: namely, that democracy will be imperiled, and the people will cease to be their own rulers, if the Supreme Court, rather than the legislative branches, ends up deciding hot-button political questions such as abortion about which the Constitution is silent. Here's the version of the Lincoln pro-democracy quote, complete with bolded words, that Shahid posted, apparently in the belief that it somehow supports upholding Roe:

It is just inexplicable to cite this Lincoln quote as a defense of Roe. Just look at what Lincoln said: “if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, [then] the people will have ceased to be their own rulers.” That is exactly the argument that has been made by pro-life activists for years against Roe, and it perfectly tracks Alito's primary view as defended in his draft opinion.

Alito's decision, if it becomes the Court's ruling, would not itself ban abortions. It would instead lift the judicial prohibition on the ability of states to enact laws restricting or banning abortions. In other words, it would take this highly controversial question of abortion and remove it from the Court's purview and restore it to federal and state legislatures to decide it. One cannot defend Roe by invoking the values of democracy or majoritarian will. Roe was the classic case of a Supreme Court ruling that denied the right of majorities to decide what laws should govern their lives and their society.

One can defend Roe only by explicitly defending anti-majoritarian and anti-democratic values: namely, that the abortion question should be decided by a panel of unelected judges, not by the people or their elected representatives. The defense of democracy invoked by Lincoln, and championed by Shahid, can be used only to advocate that this abortion debate should be returned to the democratic processes, which is precisely what Alito argued (emphasis added):

Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman's right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade….At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision Court represented the “exercise of raw judicial power,” 410 U. S., at 222….

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences…..It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U.S. at 979 (Scalia, J, concurring in the judgment in part and dissenting in part). That is what tho Constitution and the rule of law demand.

Rhetoric that heralds the values of democracy and warns of the tyranny of “unelected judges” and the like is not a rational or viable way to defend Roe. That abortion rights should be decided democratically rather than by a secret tribunal of "unelected men in robes" is and always has been the anti-Roe argument. The right of the people to decide, rather than judges, is the primary value which Alito repeatedly invokes in defending the overruling of Roe and once again empowering citizens, through their elected representatives, to make these decisions.

The only way Roe can be defended is through an explicit appeal to the virtues of the anti-democratic and anti-majoritarian principles enshrined in the Constitution: namely, that because the Constitution guarantees the right to have an abortion (though a more generalized right of privacy), then majorities are stripped of the power to enact laws restricting it. Few people like to admit that their preferred views depend upon a denial of the rights of the majority to decide, or that their position is steeped in anti-democratic values. But there is and always has been a crucial role for such values in the proper functioning of the United States and especially the protection of minority rights. If you want to rant about the supremacy and sanctity of democracy and the evils of "unelected judges,” then you will necessarily end up on the side of Justice Alito and the other four justices who appear ready to overrule Roe.

Anti-Roe judges are the ones who believe that abortion rights should be determined through majority will and the democratic process. Roe itself was the ultimate denial, the negation, of unrestrained democracy and majoritarian will. As in all cases, whether Roe's anti-democratic ruling was an affirmation of fundamental rights or a form of judicial tyranny depends solely on whether one believes that the Constitution bars the enactment of laws which restrict abortion or whether it is silent on that question. But as distasteful as it might be to some, the only way to defend Roe is to acknowledge that your view is that the will of the majority is irrelevant to this conflict, that elected representatives have no power to decide these questions, and that all debates about abortion must be entrusted solely to unelected judges to authoritatively decide them without regard to what majorities believe or want.


For those interested, I've given numerous speeches over the years about the anti-majoritarian and anti-democratic values embedded in the Constitution and the Court, including this 2011 lecture at the University of Maryland, this 2012 speech at the University of Indiana/Purdue University, and this 2013 lecture at Yale Law School.


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I share your views on the sanctity of human life. I go a step further And believe In the sanctity of all life. The problem that America has is one of constructed distraction. The whole left/right conflict is the Distraction. The powerful are very good at keeping the public sight off of them. When the sites do get turned on them as it did when Luigi Mangione shot a CEO whose company caused endless suffering, (allegedly) they absolutely lose their minds. Keep the sights on them. We are fighting ourselves otherwise, distracted, as these powerful sociopaths pillage the last scraps of wealth from America before it completely collapses and then retreat to their luxury bunkers in Hawaii or Brazil (😬) or their summer Estate in New Zealand.

Also, I think the term “sanctity of life“ is too closely linked to the church. This term needs a rebranding in my opinion.

I also believe that Charlie Kirk was wearing body armour and the bullet hit centre mass and deflected into his neck. I think the ...

RE: Charlie Kirk ... I appreciated Glenn's comments tonight. It reminded me of the Clint Eastwood quote from Unforgiven: "Its a hell of a thing, killing a man. You take away everything he's got and everything he's ever gonna have."
That thing "he's gonna have" might be a change of mind about something you disagreed with him about. I just thought it was important that Glenn emphasized the point that we are all much more than our opinion about any one particular issue and even our opinion on that issue will often change over time.

https://www.youtube.com/watch?v=_aPs9HFX0Cs

It appears that someone in the crowd knew, in the least, that there was a shooter - he saw him - that was about to commit the premediated murder of Charlie Kirk. And after the person in the crowd turned around and saw that Charlie Kirk wasn’t there he cheered as if it were a sporting event.

I came across this from sweetmojo at the duran locals page. An important find in bringing the murderer to justice.

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Minnesota Shooting Exploited to Impose AI Mass Surveillance; Taylor Lorenz on Dark Money Group Paying Dem Influencers, and the Online Safety Act
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The ramifications of yesterday's Minneapolis school shooting – and the exploitations of it – continue to grow. On last night's program, we reviewed the transparently opportunistic efforts by people across the political spectrum to immediately proclaim that they knew exactly what caused this murderer to shoot people. As it turned out, the murderer was motivated by whatever party or ideology, religion, or social belief that they hate most. Always a huge coincidence and a great gift for those who claim that. 

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There've been a lot of revelations over the last 25 years, since the 9/11 attack, of all sorts of secretive programs that were implemented in the dark that many people I think correctly view as un-American in the sense that they run a foul and constitute a direct assault on the rights, protections and guarantees that we all think define what it means to be an American. And a lot of that happened. In fact, much of it, one could say most of it, happened because of the fears and emotions that were generated quite predictably by the 9/11 attack in 2001 and also the anthrax attack, which followed along just about a month later, six weeks later. We've done an entire show on it because of its importance in escalating the fear level in the United States in the wake of 9/11, even though it's extremely mysterious – the whole thing, how it happened, how it was resolved. But the point is that the fear levels increased, the anger increased, the sadness over the victims increased and into that breach, into that highly emotional state, stepped both the government and their partners in the media, which essentially included all major media outlets at the time, to tell people they essentially have to give up their rights if they want to be safe from future terrorist attacks. 

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Glenn Takes Your Questions on the Minneapolis School Shooting, MTG & Thomas Massie VS AIPAC, and More
System Update #506

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We are going to devote the show tonight to more questions that have come from our Locals members over the week. It continues to be some really interesting ones, raising all sorts of topics. 

We do have a question that we want to begin with that deals with what I think is the at least most discussed and talked about story of the day, if not the most important one, which is the school shooting that took place in a Catholic church in Minneapolis earlier today when a former student who attended that school went to the church, opened fire and shot 19 people, two of whom, young students between eight and ten, were killed. The other 17 were wounded, and amazingly, it’s expected that all of them are to survive. The carnage could have been much worse; the tragedy is manifest, however, and there is a lot of, as always, political commentary surrounding the mass shooting attempts to identify the ideology of the shooter in a way that is designed to promote a lot of people's political agenda. So, let's get to the first question.

 It is from @ZellFive, who's a member of our Locals community. He offers this question, but also a viewpoint that I think really ought to be considered by a lot more people. They write:

 

So, I'm really glad that this is one of the questions that we got today because this is a point I've been arguing for so long. So, let me just try to give you as many facts as I possibly can, facts that seem to be confirmed by law rather than just circulating on the internet. 

So, the suspected killer is somebody named Robin Westman, who is 23 years old. After they shot 19 people inside this church, killing two young children, they then committed suicide with a weapon. The person's birth name is Robert Westman, and around 16 or 17 years old, he decided that he identified as a woman, went to court, changed the legal name from Robert to Robin, and began identifying as a trans woman, so that obviously is going to provoke a lot of commentary, and there's been a lot of commentary provoked around that. We will definitely get to that. 

 

The suspected killer also left a very lengthy manifesto, a written manifesto which they filmed and uploaded on a video to YouTube, along with showing a huge arsenal of guns, including rifles and pistols and some automatic weapons. I believe various automatic rifles as well. I don't think they used any of those weapons at school. I believe they just used a rifle and a pistol, if I'm not mistaken. But we'll see about that. 

It was essentially a manifesto both in written terms, but then they also wrote various slogans on each of these weapons and various parts of the weapons. And we're going to go over a lot of what they put there because there's an obvious and instantaneous attempt, as there always is, to instantly exploit any of these shootings before the corpses are even removed from the ground. And I mean that literally. The effort already begins to inject partisan agenda, partisan ideology, ideological agendas to immediately try to depict the shooter as being representative of whatever faction the person offering this theory most hates or to claim that they're motivated by or an adherent of whatever ideology the person offering the theory most hates. And it happens in every single case. 

Oftentimes, there's an immediate attempt to squeeze some unrelated or perhaps even related agenda in and out of it instantly. Liberals almost always insist that whenever there's a mass shooting, it proves the need for a greater gun control without bothering to demonstrate whether the gun control they favor would have actually stopped the person from acquiring these weapons in the first place, whether they were legally acquired, whether they could have been legally acquired, even with gun control measures, it doesn't matter, instantaneously exploiting the emotions surrounding a shooting like this to try to increase support for gun control. Whereas people on the right often do the opposite. 

On the right, they typically will argue that more guns would have enabled somebody to neutralize the shooter more rapidly, that perhaps churches and schools need greater security. We need more police. So, there's that kind of an almost automatic and reflexive exploitation again, almost before anything is known, but there is an even more pernicious attempt to instantly declare that everyone knows the motives of the shooter, that they know the political outlook and perspective of the shooter. They know their partisan ideology and their ideological beliefs in an attempt to demonize whatever group a person hates most. 

This is unbelievably ignorant, deceitful and ill-advised for so many reasons. The first of which is that every single political action, every single ideological movement, produces evil mass shooters. For every far-leftist mass shooter that you want to show or white supremacist mass shooters that you want to show, you can show people who have murdered in defense of all kinds of causes. And so even if you can pinpoint the ideology of the shooter on the same day the shooting happened, I mean, you can develop a clear, reliable, concise and specific understanding of the shooter that you never even heard of until four hours ago, but you're so insightful, your investigative skills are so profound, that you're able to discern exactly what the motive of this person was in doing something so intrinsically insane and evil as shooting up a church filled with young school children. 

The idea that anyone can do that is preposterous on its face. I mean, the police always say, because they're actual investigators, actual law enforcement officers who want to collect evidence that stands up for public scrutiny and also in court, “We don't know yet what the motive is; we're collecting clues.” But almost nobody on Twitter or social media or in the commentariat is willing to say that. Everybody insists immediately, no, the killer was motivated by the other party, the opposite party of the one I'm a member of, or this ideology that's not mine, or in this religion that is the one I like the most to demonize. It's just so transparent and so blatant what is being done here. And yet it's so prevalent. 

I mean, you could go on to social media and principally the social media platform where the most journalists and political pundits, influencers and the like congregate, which is X, and I could show you probably 40 different theories offered definitively with an authoritative voice. Not like, hey, this might be possibly the case, but saying clearly, we know that the killer was motivated by this particular ideology, this particular set of beliefs. And I'm not talking about random X users, I'm talking about people with significant platforms, people who are well-known. 

I could probably show you 40 different theories like that, where every person is purporting to know definitively exactly what the motive of the shooter was and by huge coincidence they all have latched on to whatever ideology or faction or motive most serves their own political worldview to demonize the people with whom they most disagree, or whatever ideology or group of people they most hate. That's always what is done. And I guess in some cases, if a shooter leaves a particularly clear and coherent manifesto, and we have had those sometimes, we have had Anders Breivik in Norway, who made it very clear that his motive was hatred for Muslim immigrants who shot up a summer camp in Norway. We had the Christchurch, New Zealand killer who attacked two mosques and mass murdered dozens of Muslims at a mosque and made clear he was doing so because it was viewed that Islam is a danger. We had the mass shooter in a Buffalo supermarket, who made manifest their white supremacist views. We've had mass shooters who are motivated by hatred of Christianity, as happened in the Nashville shooter attack on a Christian school there, I mean, I could go on and on. 

As I said, every single political faction produces mass shooters, mass killers, evil, crazy people who use violence indiscriminately against innocents in advance of their beliefs. But most of the time, and you might even be able to say all of the times – I mean, maybe I don't like the phrase all of the times because you can conceive of exceptions, but close to all the time, most of the time, people who go and just randomly shoot at innocent people whom they don't know are above all else driven by mental illness and spiritual decay, not by political ideology or adherence to a political cause. That often is the pretext for what they're doing; that may be how they convince themselves that what they are doing is justified. But far more often than not, the principle overriding factor is the fact that the person is just mentally ill or spiritually broken, by which I mean just a completely nihilistic person who has given up on life and wants to just inflict suffering on other people because of the suffering that they feel or their suffering from delusions. 

And this isn't something I invented today. This is something I've long been saying. And I just want to make one more point, which is, even though there are sometimes manifestos that are extremely clear and say, “I am murdering people in a supermarket that is African-American because I hate Black people and I don't think they belong in the United States,” or “I believe that white people are the sole proper citizens of the United States and I want to murder and kill inspired by those other mass murderers” that I mentioned, even then, it may not be the case that the person's representation of what they're is the actual motive because it could be driven by a whole variety of other factors, including mental illness, or all kinds of other issues to be able to conclude in six hours, even with a crystal-clear manifesto that the person did it for reasons that you're ready to definitively assert are the reasons is so irresponsible. It's just so intellectually bankrupt. 

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