Thursday, November 20, 2008

Roe and other democratic decisions

In the comments of this post, James says
The issue is less of the expressions of grievance and more of the way in which those expressions are treated politically. The excess of the left is to say that the simple expression of grievance makes the political treatment a foregone conclusion. But this is to be cashed out as the despotic exercise of political power by fiat. Whereas I am inclined to agree, Freddie, that the purpose of democracy is to “take time” turning the wheels of politics, instead of shortcutting by automatically granting goods, services, rights, whatever to whomever voices a demand for them. Probably it should mean something significant that me and Conor and you and Andrew and plenty of other people with wildly diverging takes on, say, the marriage issue all conclude that the best or proper way to politically treat the grievances expressed is through the actual practice of democratic politics — and at the state level, too, right?

James is, presumably, talking about the complaint that the courts short-circuit the democratic process. This is a classic argument about Roe: not just that it reached the wrong decision (though most arguing this believe that) or that it was poorly argued (ditto), but that it was anti-democratic, because it legalized abortion nationwide without using the democratic process. That's a very popular point of view, even among some who are pro-choice, but it's wrong, and crucially wrong: the use of the courts to resolve disputes is a part of our democratic process

How did we arrive at a system where individuals and groups could challenge the state to have certain rights recognized, or to be enfranchised into preexisting categories of rights? It was created during our constitutional conventions, where the progenitors of the American system determined how our civic governance was going to run. In other words, it is a function of democratic process, and thus the outcome of court proceedings are themselves the products of democratic process. True, the process which created our constitution was of limited democratic value. But if we want to start questioning that process, we might as well tear the whole damn thing down. Meanwhile, we live in a country with a democratically produced system to adjudicate claims for equal rights, which refers to democratically produced state and federal documents which enumerate such rights.

Consider the gay men and women in Massachusetts who sued for the right to marry, based on the claim that they were being denied equal rights enshrined in the state constitution. The complaint immediately rang (often from places nowhere near Massachusetts, natch) that this was an undemocratic change of the law, because the voters or legislature didn't vote on it. Hogwash! The system of grievance-resolution-through-judiciary is a part of our democratic system, and one very few people want to do away with. The Massachusetts state constitution, meanwhile, is a document produced, ratified and amended according to democratic procedures. The decision was the process of a group of judges, sure. The fact that they had the authority to decide this complaint was the product of democracy.

Now let's consider Roe v. Wade. Again, a standard complaint is that the ruling was not the product of democratic process. In this instance too, though, we've got a document in our constitution that was democratically designed, ratified and amended, and the Supreme Court ruled that the constitution has an implied right to privacy which protects the right to an abortion. Now, you can argue that was a terribly decided case, and many have. But it's not "undemocratic". It's the product of a system created by democratic process. We don't have the ability to reformulate every procedure of democracy whenever a controversial issue comes up, so we use the processes we already have, even if they sometimes leave us with decisions we don't like.

Note, also, that's it's not like there's no recourse for those who are opposed to abortion. There's another democratic process that they could attempt to use to get rid of Roe: they could amend the constitution. Yet that's not on the table, and why? Because proponents of such an amendment know that criminalizing abortion isn't possible, politically, in this country, and likely won't be anytime soon. Outlawing abortion just isn't a popular enough position. That means it's like many other policy preferences that don't enjoy enough support to be codified into law. That's democracy. In a more radical vein, you could do away with the court system as a way of refereeing disputes entirely, but there are many reasons why we disconnected the judiciary from direct influence by the people in the first place.

People can and should still argue against decisions they dislike, of course, but I think that saying that court decisions are undemocratic is really just pretense, a way to lend a special sense of illegitimacy to court decisions you don't agree with.


Jake said...

Respectfully disagree. If i follow your reasoning, it's this:

-the right to bring a lawsuit is part of the democratic process.
-roe is a lawsuit.
-Roe is democratic.

There's no logical weakness in the above, yet it proves little. Here's why:

-the right to sue is part of the democratic process.
-dred scott is a lawsuit.
-dred scott is democratic.

you can substitute korematsu (detention of japanese americans during WWII is a-okay) for dred scott if you want to use a case that hasn't been overturned.

my point is this: your argument legitimizes all lawsuits as democratic, regardless of outcome. if your goal was to demonstrate that the right to sue was a right agreed to by the supermajorities that ratified the constitution, then i guess you've done that. but if you wanted to show that roe was somehow MORE democratic than allowing each state to decide the issue for itself, then i'm not sure this argument gets you there.

also, allow me to clarify the argument for those who believe roe was wrongly decided. it's not necessarily that the court short-circuited the democratic (i.e., the legislative) process. it's that the court went beyond a reasonable interpretation of the constitution, thus substituting its own judgment for that of the framers of the constitution. you can debate whether that's true all day long... but i'd rather slam a book on my genitals.

Freddie said...

I'm definitely making a pretty weak argument, Jake, in the sense that it's not saying all that much. I just find it's a pretty common tic to say "Roe is undemocratic", and in what I consider the most important way, it isn't. Also, to be clear-- democratic should never be taken as a synonym for good. Dred Scott being a case in point. Or, if you feel like I do, Proposition 8.

Anonymous said...

Perhaps what we're looking for is some sort of hierarchy for fairness or acceptable decision making for a polity:

Democratic decisions (votes) should not be overturned by less democratic means (courts).

You can imagine that this would hold for all sides. No one likes it when plebicites (sp?) of one reason or another are overturned for legal reasons; it's why people hate phantom pass interference calls at the end of football games.

However, much of the civil rights era is founded on using the courts to enforce the rights of the minority against the general wishes or desires of the majority. -K.

Anonymous said...

The fact that judges are sometimes wrong, even spectacularly wrong, doesn't make their decisions undemocratic. Stated another way, the democratic bona fides of the judicial process is not outcome determinative. That wrong decisions can be difficult to remediate isn't necessarily a bug, but a feature of the process. That's how we are able to maintain an independent judiciary, which, on the whole, better serves us than one that sways too neatly with public opinion. It's not perfect, but it's hard to think of anything better.

another anon

Freddie said...

However, much of the civil rights era is founded on using the courts to enforce the rights of the minority against the general wishes or desires of the majority

Right, even when those rights have already been codified by law. The judiciary, in many instances, is necessary to enforce laws that have been passed by legislative process that protect the rights of certain groups. Crucially, that's what the justices behind Roe or the Massachusetts gay marriage ruling would say they were doing, enforcing protections already enumerated in the state and federal constitutions. Again, you can disagree that those protections are in fact within these documents, but then that's simply complaining about a poorly decided legal decision, not something being "undemocratic".

william randolph brafford said...


But isn't it the function of the courts to resolve particular disputes, i.e. primarily to interpret the law, and only to strike down laws if there is a real contradiction with the Constitution?

From what I have read about the California court decision, it really was in line with the California state constitution. If this is the case, I've no problem with the court's conclusion.

The problem conservatives have with the whole series of decisions that led up to Roe is that the judges seemed to be inventing new rights (famously, in a “penumbra”), not just settling claims regarding the established ones. The courts are supposed to interpret within the frame provided by the democratic process. In this view, the decision in Roe was bad because it was badly reasoned and because it overstepped its framework.

Do conservatives really just say the courts are undemocratic and leave it at that? I find that most of the thoughtful ones who oppose decisions like Roe have a whole list of reasons…

Freddie said...

But isn't it the function of the courts to resolve particular disputes, i.e. primarily to interpret the law, and only to strike down laws if there is a real contradiction with the Constitution?

But herein again there's a problem, Will-- the justices who decided Roe believed that's what they were doing. If you read their decision, they were saying that there actually was a right to privacy that was already in the constitution, and that their decision merely upheld that right by denying the state the right to regulate abortion. They didn't think they were expanding the rights already enumerated in the constitution, only that they were enforcing an extant one.

That seems pretty loony to a lot of people. And, again, there's going to be decisions that piss a lot of people off, and decisions that are wrongly decided. The issue is whether Roe is some uniquely out of character ruling that is outside of the purview of a Supreme Court Justice. I don't think it is, in the sense that they are asserting an expansive definition of a right they believed already extant, rather than inventing a new right. Whether they actually did invent a new right is the bone of contention, and I think opponents of Roe have real complaints here. Just not that Roe was a violation of the democratic process.

Although at this point, though, I could easily just be hung up in semantics.

william randolph brafford said...


I think that here in the comments you and I are agreed enough (a court decision is not "undemocratic" just because it is broad and/or unpopular) that arguing any further would take us deep into the semantic forest. Your responses helped clear things up.


bcg said...

Semantics? I'll show you semantics!

Is "extant" the right word here? Are there rights established in the Constitution that have not survived to the present era?

bcg said...
This comment has been removed by the author.
Zack said...


I think this: "People can and should still argue against decisions they dislike, of course, but I think that saying that court decisions are undemocratic is really just pretense, a way to lend a special sense of illegitimacy to court decisions you don't agree with."

is absolutely correct as an analysis of rhetoric. However, I do think you go astray in proclaiming judicial protection of rights democratic. Instead, it's an essential part of the old conflict between liberty and democracy that we need to keep in mind more often. Judicial rulings are intended to correct democratic excesses and protect imperiled liberties -- just because something is democratically decided doesn't make it consistent with fundamental conceptions of liberty, and arguing that court decisions are somehow third-order democratic seems to me to have the unfortunate effect of de-legitimizing their authority.

Freddie said...

You could be right, bcg! Hope not.

That's a good point, Zach... at some point, I really need to unpack what "democratic" means in different contexts.

MikeF said...

Yeah, constitutional might be a better adjective than democratic here. But semantics aside, fantastic post. It really infuriates me when people pretend that the courts aren't a vital part of the government. And it's a selective myopia - the people who constantly complain about Roe v. Wade never seem to question, say, overturning the DC gun ban.

Bob said...

bcg asked

Is "extant" the right word here? Are there rights established in the Constitution that have not survived to the present era?


bcg, not sure what you are getting at but yes there are rights found in the Constitution that have not survived to the present era.

Slavery was allowed and an amendment abolished that institution, I'm thinking the 14th.

Another is the election of Senators by state legislatures. Direct election, popular vote, of Senators is a 20th century construct.

Hope this helps.

Palympset said...

Fredde -

I get what you mean. The process is democratic because the courts are a democratic institution specifically designed as the place where minorities can avoid the tyranny of the majority. It's a brilliant and essential component to our system. The founding fathers were indeed profound thinkers.

Here's a great example of how the courts exist not OUTSIDE democracy but well enmeshed in it: in 1986, in Bowers versus Hardwick, the Supreme Court found no constitutional protection to sexual privacy. Sixteen years later, in Lawrence versus Texas, the court reversed itself to declare that right *did* exist under the Fourteenth Amendment. In fact, one judge (Breyer, I think?) who had sat on both cases had quite explicitly changed his mind.

What happened? Did the right suddenly appear? Was the court wrong in 1986? Was the court inventing the right in 2003, as conservatives accused? Had the fourteenth amendment changed its meaning in the intervening sixteen years?

I'd say that what changed was the democratic context - the *understanding* of the right changed, both in the minds of the justices and in the public understanding at large.

The court simply reflects its times and the public and legal case law of understanding available. It can sometimes proceed the majority opinion because it can be more careful and reasoned than the simple public opinion. On the other hand, it can sometimes also be as prejudiced or unaware as the public or its time.

In this sense, it is a democratic institution, one that operates not by popular vote but by prevailing thought and legal jurisprudence of the selected members of the court (who are, by the way, selected through the buffered and convoluted workings of a democratic system). If the Senate is a deliberate body that distills the passions of the House into a more collegial atmosphere, then the courts are yet a further distillation of the public passions into a body that can remove itself from mass prejudices, passing popular trends and impassioned rages to consider issues more carefully. It was very wise of our founders to include such a system as one of the pillars of our democracy.

Palympset said...

BTW - love your blog.

Cascadian said...

I don't see Roe as part of the democratic process at all. I believe that it rests on the fourteenth amendment which I deem absolutely illegitimate. I have problems with all antebellum amendments but the way in which the fourteenth was passed set a new low. These were not democratic processes. Later decisions that have these amendments as their foundation, share their dubious claims to legitimacy.

Anonymous said...

Cascadian - I think you mean "postbellum", since antebellum means before the war. But please: you believe that the constitutional amendments barring slavery and race-based voting requirements, providing full citizenship and due process have no legal validity? Wow, that's not a world I'd like to live in.

Cascadian said...

Thanks for the correction, my bad. My position has nothing to do with slavery. I don't think that slavery was good or moral.

However, I also believe that disenfranchising political adversaries is hardly democracy. In the case of the fourteenth amendment there were many procedural problems.

The substantive problems I have is that it redefined citizenship as national and by birth rather than by State. This was a fundamental change in the relationship of the citizen to the Federal government. The combination of the degree of change that it brought combined with the questionable way in which it was enacted make it a target.

If you really want Federalism, disagree with birth right citizenship, or the Statist position of Roe, the fourteenth is problematic and vulnerable.

Here's a cheap wiki round up via the Utah Supreme Court:

In order to have 27 states ratify the Fourteenth Amendment, it was necessary to count those states which had first rejected and then under the duress of military occupation had ratified, and then also to count those states which initially ratified but subsequently rejected the proposal.

To leave such dishonest counting to a fractional part of Congress is dangerous in the extreme. What is to prevent any political party having control of both houses of the Congress from refusing to seat the opposition and then without more passing a joint resolution to the effect that the Constitution is amended and that it is the duty of the Administrator of the General Services Administration to proclaim the adoption? Would the Supreme Court of the United States still say the problem was political and refuse to determine whether constitutional standards had been met?

How can it be conceived in the minds of anyone that a combination of powerful states can by force of arms deny another state a right to have representation in the Congress until it has ratified an amendment which its people oppose? The Fourteenth Amendment was adopted by means almost as bad as that suggested above.[22]

So, while I don't want a return to Slavery or Jim Crow,neither do I accept that the way in which this amendment was passed was sufficiently "democratic" to give a sound foundation for the further propositions and laws that were built on it.

Matoko said...

George Will agrees.

Matoko said...

I just don't think that it is possible that any document could be so well written that it takes into account the future continuum of spacetime.
Systems with zero flexiblity always fail.

Matoko said...

Also, systems with zero adaptability.