Former President Trump with Supreme Court Justice Amy Coney Barrett at her swearing-in ceremony in October 2020. | Getty Images
The former president is out of office, but his policies have found a lifetime appointment.
After deplaning on the tarmac of Joint Base Andrews on his last day in office, Donald Trump made a pledge to the crowd of supporters gathered there: “We will be back in some form.” A year and a half after that day, the former president’s policies are back, in the form of a supermajority in the Supreme Court.
On the night of the 2016 election, millions stood in front of television screens fearful that Trump’s electoral victory would mean harsher treatment for groups like people of color, immigrants, women, and LGBTQ individuals. He had, after all, promised such policies. With President Joe Biden finally in office after a seditious mob overran the Capitol, some believed they could lay down their protest signs and breathe a sigh of relief.
Yet last week’s Supreme Court ruling in Dobbs v. Jackson Women’s Health, which wiped the right to an abortion from constitutional law, demonstrates that even out of the White House, Trump is still clinging to power, turning those sweeping policy changes into reality. In particular, some civil rights leaders and legal scholars see the momentous ruling as proof of a political process in disrepair and the capture of democratic institutions in service of a privileged few.
“Until the 1960s, we were fighting on Freedom Rides about the constitutionality of our travel — that is not enumerated in the Constitution,” said Maya Wiley, the president of the Leadership Conference on Civil and Human Rights, which maintained a tracker of Trump’s civil rights rollbacks while he was in office. “The logic of Justice Alito’s opinion puts so much on the table.”
In Justice Samuel Alito’s Dobbs opinion, he noted that the ruling “does not prevent the people’s elected representatives from deciding how abortion should be regulated.” But court-watchers point out that the legislative path is replete with hurdles that the Court itself has installed, such as its 2013 decision in Shelby County v. Holder invalidating a portion of the Voting Rights Act of 1965 that allowed the government to supervise changes in election laws in counties with a history of voter discrimination.
“It’s so disingenuous to say that we’re just going to allow political majorities in the state to determine the legality of abortion when not everybody in the state is going to be able to vote because of what Republicans are doing and because of what the Court is allowing them to do,” said Khiara M. Bridges, a professor at the University of California Berkeley School of Law. “Our democracy is undeserving of that label.”
Although the outcome was not entirely unexpected, owing to a shocking leak of Justice Alito’s draft opinion to Politico in May, the final version’s largely unchanged language shows that whatever moderating influence Chief Justice John Roberts may have had is inconsequential. With judicial power at its zenith, the 6-3 Republican-appointed majority can ensure the permanence of Trump in power.
Sarah Turberville, the director of the Constitution Project at the nonpartisan Project on Government Oversight, sees the demise of abortion rights as a symptom of a larger anti-democratic illness. “This is a place where too few people hold too much power for too long, and their decision to overturn a 50-year-old precedent in a way that strips 50 percent of the population of a right they previously held is just absolutely emblematic of that fundamental problem,” she said. “It’s almost a recognition that this is a political institution now.”
Democracy, but for the very few
For a long time, the Supreme Court had been conceived in popular imagination and civic culture as a protector of minority rights. The legal circles of the 20th century grappled with the theory of “counter-majoritarian difficulty,” which held that the judiciary was a necessarily antidemocratic institution because in declaring a statute or executive action unconstitutional, they overruled the will of the people as expressed through their representatives. Another camp asserted that the Court could continue to advance democracy if it devoted itself to reinforcing the representation of minorities in the political process.
But in 2022, such theories are growing ever more distant from reality. As one scholar put it in the California Law Review, the U.S. electorate is becoming “more racially and ethnically diverse, more geographically concentrated and homogeneous, and more divided, not only in its partisan affiliations, but in its values and its prospects for the future.” The Court, however, has used its power neither to serve as a counter-majoritarian counterweight nor to reinforce representation of a growing multiracial electorate. The result: a Court that enables the entrenchment of “a shrinking white, conservative, exurban numerical minority to exert substantial control over the national government and its policies.”
In other words, with this Court of Trump’s making, the United States is moving closer to a democracy for the very few and authoritarianism for the masses.
Aziz Rana, a professor at Cornell Law School, points out that when presidents have enjoyed ideological harmony with the judiciary, they have traditionally also been backed by a robust popular vote that put them in office. Former presidents Ronald Reagan and Richard Nixon won landslide reelections, which meant that their nominations to the Supreme Court — which ushered in an era of judicial conservatism — were in tandem with the general conservative trends of the moment. Those political trends were reflected in Planned Parenthood v. Casey, which committed to Roe’s general right to abortion but limited the applicability of the decision.
Dobbs is completely different, Rana said. “You have a situation in which a minority party is imposing an ideological agenda that has been widely rejected by the vast majority of the country.” Today, only one of the five justices who signed onto Dobbs was nominated by a president who won the popular vote.
At the same time, although Roe purported to grant an expansive right, subsequent decisions chipped away at those protections. “Many communities have been living in a post-Roe world for decades now,” Bridges said. In the 1980 case Harris v. McRae, the Court held that federal funds could not be used to fund abortions, which made the procedure inaccessible to Medicaid recipients. It also banned abortion in Indigenous reservations through Indian Health Services, Bridges said. Even as some women declared victory, low-income Americans and people of color were not accorded the same treatment under the law.
“Roe kept privileged feminists quiet,” she said. “It kept them satisfied with the state of the country.”
How Trump became “a kind of permanent lawmaker”
Trump’s policies are alive and well at the Supreme Court and in other areas of law, too. Last term, the Court allowed Arizona to impose burdens on voting by mail and provisional ballot, even though these obstacles had a discriminatory impact on Black and brown Arizonans.
This year, the Court also invalidated a regulation requiring large workplaces to establish vaccine-or-test requirements. It also struck down a Maine ban on using taxpayer money to fund private religious schools. One day before Dobbs, it threw out a 100-year-old New York law that required gun owners to show “proper cause” to obtain conceal-carry permits, making it easier to carry a concealed gun in public. On Monday, it also sided with a Christian high school football coach, allowing him to pray at the 50-yard line, even though the Court had held in 1971 that school-sponsored prayer violated the separation of church and state.
“The Court is now stacked in such a way that it will not protect marginalized people when it comes to abortion rights. It won’t protect LGBTQ communities. It won’t protect poor people,” Bridges said. “But it will protect Christians.”
Taken together, these decisions exemplify the perils of presidentialism, Rana said. When a lack of coalition-building and compromise paralyzes a political system, a powerful executive can use the courts as an end-run around the legislative process to “become a kind of permanent lawmaker.” He noted that the Supreme Court is made more powerful, when compared to other institutions of democracies, by its lack of term limits, its small size, and the absence of legislative or ethics oversight.
“It’s not a surprise that the incentives are set up for Trump, while in office, largely to avoid any kind of legislative agenda — to often operate using the security apparatus of the state, like in immigration policy — and then impose long-term policy changes, not by building majorities in support of his views, but rather by effectively packing the courts,” Rana said.
Still, others say, there will be a role for Biden to play in the post-Roe era. One view is based on a pre-emption theory: that the Supremacy Clause of the Constitution empowers federal law to trump state law when the two conflict. This is the main thrust of a recent article in the Columbia Law Review cited approvingly by the three dissenters in Dobbs.
Greer Donley, a professor at the University at Pittsburgh School of Law and one of the article’s authors, said that this theory gave the Biden administration a wide array of constitutional options to combat this decision.
“Given that the [Food and Drug Administration] has both approved medication for abortion and strictly regulated it for the past two decades, that might suggest that states are not actually able to regulate it more harshly than the FDA,” she told me. “And so to the extent that a state is banning an FDA-approved and strictly regulated drug, that is in conflict with the federal government’s policy and is preempted.”
In a statement immediately following the ruling, the Justice Department appeared to adopt this view. “States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” Attorney General Merrick Garland said in a statement.
But for Wiley, the role of lawyers will be to take their advocacy local.
“The fact that it’s the Supreme Court and not the legislative branch, not the executive branch … means we are in a very long fight, state by state, locality by locality, and federally, about how to get people protected,” she said in an interview.
Jesús A. Rodríguez is a writer and lawyer in Washington, DC, and the publisher of Alienhood, a newsletter on law and illegality.