Dobbs and Democracy

Introduction

On August 2, 2022, Kansas voters overwhelmingly rejected a proposed constitutional amendment that would have written abortion protections out of the state constitution.¹ Three days later, Indiana passed and signed into law one of the most restrictive abortion bans in the country.²

These events occurred less than two months after the Supreme Court overturned Roe v. Wade³ and Planned Parenthood of Southeastern Pennsylvania v. Casey,⁴ once the twin pillars of the Court’s abortion jurisprudence, in Dobbs v. Jackson Women’s Health Organization.⁵ And, because both events were framed in public debates as referenda on Dobbs and the future of reproductive rights, some commentators suggested that these developments vindicated the Dobbs majority’s assertion that “[i]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”⁶

It is unsurprising that these two events would prompt such a response. After all, Justice Alito’s majority opinion in Dobbs maintained that the political process was the proper venue for resolving the competing interests at stake in the abortion debate.⁷ On the majority’s telling, its decision laying waste to nearly fifty years’ worth of precedent was a necessary corrective to an egregious act of judicial overreach. According to the Dobbs majority, the Court in Roe and Casey had stripped the American people of “the power to address a question of profound moral and social importance.”⁸ In so doing, it had “short-circuited the democratic process by closing it to the large number of Americans who dissented”⁹ from these two decisions.

Despite this lofty talk of returning the abortion question “to the people,”¹⁰ the Dobbs majority’s conception of democracy quickly collapses upon close examination. The rhetoric of democracy in Dobbs is both revealing and hollow: it is revealing in that its paeans to democracy flow from strategic choices made in the political sphere about how to criticize and delegitimize the Court’s abortion jurisprudence, as well as from scholarly critiques of Roe; it is hollow in that the conception of democracy it displays is profoundly limited. Indeed, some might argue that the majority’s invocation of the values and vernacular of democracy is at once instrumental and cynical. That is, the Dobbs majority’s interest in returning the abortion question to the American people was likely not in service of the settlement of a vexed and contentious issue. Rather, the majority’s insistence on democratic deliberation may simply be a way station en route to the pro-life movement’s desired resolution: the complete abolition of legal abortion.

The Article proceeds in five parts. Part I provides an intellectual history of the democratic deliberation argument, tracing the emergence and evolution of the rhetoric of democratic deliberation in the Court’s abortion cases. As we note, although the rhetoric of democratic deliberation is briefly glimpsed in the dissenting opinions in 1973’s Roe v. Wade and Doe v. Bolton¹¹ and 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey, the bulk of the initial criticism of these decisions took aim at the Court’s conception of the rights at stake. Put differently, the initial critique of Roe and its recognition of the abortion right — in and outside of the Court — was not about the decision’s disruption of democratic deliberation, but rather about its misapprehension of the nature of fundamental rights.

In time, as the Court’s personnel changed, social movement mobilization in opposition to abortion intensified, and new scholarly critiques of Roe and abortion rights emerged, the arguments against Roe evolved. Rather than focusing principally on the Court’s misunderstanding of fundamental rights, Roe skeptics (on and off the Court) began to embrace and advance the democracy-grounded arguments that once had been peripheral in abortion discourse. On this emerging account, Roe’s fatal flaw was not simply that it misunderstood fundamental rights; instead, Roe was wrong because it imposed the Court’s policy preferences on the country, wresting the abortion issue from state legislatures, which were in the process of resolving these disputes.

After tracing the intellectual history of the democratic deliberation argument in and outside of the Court, Part II considers the jurisprudential implications of the Dobbs Court’s association of Roe with disrupted democratic deliberation. As we explain, the Dobbs Court’s reiteration of the disrupted democratic deliberation narrative went beyond simply justifying overruling Roe and Casey; it also fundamentally altered the scope and substance of the stare decisis calculus. Under Casey, courts were required to consider a range of factors, including the decision’s workability and the quality of its reasoning, in determining whether to depart from an existing precedent.¹² They could also consider whether there is a “convincing justification” that warrants a break from long-standing precedent.¹³ On one level, the Dobbs Court’s emphasis on democratic deliberation may simply have created a new justification: the existence of ongoing popular debate on an issue of “profound moral and social importance” about which there exists a “national controversy.”¹⁴ On another level, however, the Dobbs Court’s focus on democratic deliberation may have signaled its willingness to bypass conventional stare decisis analysis altogether if it views a precedent as so contentious and divisive that the underlying question should be decided through the political process, rather than through judicial resolution.¹⁵

Having established the Dobbs Court’s interest in democratic deliberation, Parts III and IV pivot to consider the strength of this commitment to democracy. Part III first challenges the Court’s apparent conception of democracy. It then examines both the specific ways the majority opinion invoked the prospect of democratic deliberation, and the deep democratic myopia that undergirded the opinion’s assessment of the current electoral landscape. As we explain, this myopia assumed different forms. First, the Court displayed a crabbed understanding of the venues and contexts in which democratic deliberation occurs, treating democracy as coextensive with state legislative activity and rendering invisible state courts, state executives, the federal government, local officials, and mechanisms of direct democracy. Second, the Court imagined the democracy it sought to facilitate as unidirectional, producing more restrictive, rather than more protective, abortion policies. Third, the Court’s discussion of women’s political participation suggested that political power can be measured by voter turnout alone, overlooking critical metrics like representation in electoral office and in the ecosystem of campaign finance. Finally, the historical method the Court announced and deployed to determine whether the abortion right is constitutionally protected links contemporary constitutional meaning to positive law enacted by a polity in which women and most people of color were utterly absent — an interpretive method that belies any meaningful commitment to democracy.

After identifying these deficits in the Dobbs Court’s discussion of democracy, Part IV considers the Court’s actual commitment to the pros­pect of democratic deliberation. As we explain, the Court’s insistence on returning abortion to the people for democratic deliberation stands in stark contrast to its recent decisions actively distorting and disrupting the democratic landscape to which the Court now consigns the abortion question. To this end, this Part also considers the ways in which the Court routinely — and selectively — gestures to the political process and democratic debate as a means of avoiding judicial interventions that would secure the rights and status of underrepresented groups.

Finally, Part V comes full circle to consider the Court, Dobbs, and the relationship between democracy and judicial review. Here, we argue that the Court’s invocation of democracy and democratic deliberation in Dobbs serves both rhetorical and substantive ends. In terms of rhetoric, the appeal to democracy and democratic engagement allows the majority to avoid claims of judicial activism and overreach. Substantively, however, the interest in democratic values may be more profound. As we explain, woven throughout the opinion’s appeals to democracy and democratic deliberation are nods to the interests of the fetus and unborn life. With this in mind, we maintain that the majority’s interest in democracy and democratic deliberation may serve to scaffold an argument that posits the fetus as an entity with constitutional interests that the Court is obliged to protect.

Taken together, this Article’s excavation of the intellectual history of democracy-oriented arguments, in tandem with its discussion of the Dobbs Court’s shallow and myopic commitment to democracy, make plain that Dobbs cannot be genuinely understood to rest on or to further democratic engagement, as the majority insists. Instead, the majority’s invocation of democracy is yet another discursive move that deploys the vernacular and values of democracy for other ends.

I. The Evolution of an Argument

The majority opinion in Dobbs made much of the notion that Roe v. Wade disrupted ongoing state-level debate over abortion rights.¹⁶ Moreover, according to Justice Alito, Roe’s critics immediately assailed the decision on the ground that it usurped the role of the people, substituting judicial judgment for democratic engagement on a fraught and divisive social issue.¹⁷ Critically, this notion of disrupted democratic engagement ostensibly undergirds much of the majority’s disdain for Roe — and ultimately, its overruling of this nearly fifty-year-old precedent.

The view that Roe disrupted ongoing democratic debate over abortion rights has long been part of the conventional wisdom around Roe.¹⁸ Most, including the Dobbs majority, accept unquestioningly the account that from the start, Roe was understood as removing the abortion question from the people, who were in the throes of debating the issue for themselves.

But is this conventional wisdom correct? In the sections that follow, we trace the intellectual history of the disrupted democratic deliberation argument. As we show, although this narrative briefly surfaced in the dissents to Roe v. Wade and Roe’s companion case Doe v. Bolton, it receded almost immediately as critics focused instead on Roe’s logic vis-à-vis the identification of fundamental rights. It was only later, amidst changes in the Court’s personnel, new scholarly critiques, and new grassroots mobilization against abortion, that the narrative of disrupted democratic deliberation took root and flourished as a core objection to Roe and the right it recognized.

A. Roe’s Immediate Aftermath

Although it will be remembered as an embattled decision,¹⁹ Roe v. Wade, when it was decided in 1973, reflected relative consensus among the Court’s members.²⁰ Authored by a Republican appointee, Justice Blackmun, Roe was decided on a 7–2 vote in which both Republican- and Democratic-appointed Justices were in the majority.²¹ The dissenting contingent was also bipartisan in nature.²² Then-Justice Rehnquist, a recent Nixon appointee,²³ objected to both the Court’s exercise of jurisdiction over the case²⁴ and the majority’s conclusion that abortion was protected as a component of the right to privacy.²⁵ But Justice Rehnquist’s dissenting opinion gestured only vaguely to the prospect of democracy and popular deliberation, noting debate and “changing” views on abortion²⁶ and linking the majority’s decision in Roe to Lochner v. New York,²⁷ a 1905 decision in which the Court invalidated a New York progressive labor law.²⁸ In 1973, as today, Lochner was widely discredited as anticanonical;²⁹ although, as Professor Jamal Greene has noted, “the consensus over Lochner’s wrongness obscures deep disagreement over why it is wrong.”³⁰

Justice White, a Kennedy appointee, penned a dissent — joined by Justice Rehnquist — opposing both Roe and its companion case, Doe v. Bolton.³¹ In that dissent, Justice White invoked democracy more directly. According to Justice White, the majority’s decision in Roe was a stunning exercise of judicial overreach, stripping “the people and the legislatures of the 50 States” of the opportunity “to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.”³² The Roe Court’s “exercise of its clear power of choice” was particularly egregious “[i]n a sensitive area such as [abortion], involving as it does issues over which reasonable men may easily and heatedly differ.”³³ In Justice White’s view, such a contested — and contestable — issue “should be left with the people and to the political processes the people have devised to govern their affairs.”³⁴

But to be clear, in the immediate aftermath of Roe, Justice White was largely alone in voicing concern that the Roe Court had usurped an issue best left to the legislatures and to the people. And in the years immediately following Roe, Justice White’s concerns about democratic deliberation appeared to recede as the Court’s Roe skeptics focused on cabining the decision’s reach. Three years after Roe, the Court’s decision in Planned Parenthood of Central Missouri v. Danforth,³⁵ invalidating portions of a Missouri abortion statute, prompted few objections that explicitly sounded in the register of democratic deliberation.³⁶ Certainly, some members of the Court maintained that the parental-consent requirement challenged in Danforth was within the state legislature’s purview to weigh and enact.³⁷ But, critically, even as members of the Court acknowledged the legislature’s authority to regulate the provision of abortion services, no Justice raised the view that Roe was illegitimate because it improperly disrupted democratic debate on the abortion question. Likewise, in his partial dissent in Danforth, in which Chief Justice Burger and Justice Rehnquist joined, Justice White emphasized the state’s authority, even in the face of the interests protected in Roe, to enact the challenged laws.³⁸ He did not reiterate his earlier position that Roe deprived the people of the opportunity to decide the issue for themselves.

Critically, the notion that Roe’s fatal flaw was its disruption of ongoing democratic deliberation was also not explicit in the academic responses offered in the decision’s immediate aftermath. To be sure, Roe sparked considerable debate among legal scholars, including, famously, Professor John Hart Ely’s Yale Law Journal essay, The Wages of Crying Wolf: A Comment on Roe v. Wade (Wages).³⁹ But despite the Dobbs majority’s reference to the essay as evidence that Roe drew immediate criticism,⁴⁰ in fact, Ely’s critique largely focused on the constitutional basis for the Court’s decision regarding the fundamental nature of the abortion right, the Court’s failure to appropriately weigh the state’s interest in protecting fetal life, and its disregard for the separation of powers.⁴¹ Only later did Ely shift his focus from fundamental rights and state regulatory authority to consider Roe’s implications for democratic deliberation.⁴²

In Wages, Ely charged the Roe Court with creating “this super-protected right [that] is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.”⁴³ Ely focused far more on the perceived weakness in the opinion’s reasoning than on its disruption of democratic debate and engagement. And while Ely noted that the Roe majority had improperly “second-guess[ed] legislative balances,”⁴⁴ even that brief nod to the legislature appeared to conflate legislative regulatory action with democratic deliberation. But critically, the view that Roe allowed the Court to substitute its policy preferences for legislative action does not squarely encompass the view, later articulated in Dobbs, that Roe’s critical flaw was that it disrupted popular debate on the issue.

In the immediate aftermath of Roe, other scholarly critics likewise gestured only vaguely at the notion that the Court’s decision foreclosed popular debate on the abortion question. Reflecting on Roe in the Supreme Court Review, Professor Richard Epstein focused on the Roe majority’s effort to balance the woman’s interest in terminating a pregnancy against the prospect of fetal life.⁴⁵ It was only in the final paragraph of his twenty-six-page article that Epstein nodded toward democratic deliberation, questioning why the Court would devote so many decisions to “insur[ing] that the political process will be . . . open and fair” only to circumvent state governments who were “responsive to the majority of [their] citizens.”⁴⁶ Such efforts to enhance democratic participation, Epstein mused, were likely unnecessary in the face of the kind of judicial imperialism that Roe reflected.⁴⁷

To be sure, these early critics’ focus on countermajoritarianism and the identification of fundamental rights undergirded a broader institutional critique that sounded in the register of popular sovereignty: that, in issuing a decision that recognized a fundamental right to abortion, the Court removed the question from the legislative process and insulated the newly recognized right from public objections. Still, in Roe’s immediate aftermath, much of the judicial and scholarly criticism was less than explicit in its objection to frustrated democratic deliberation, focusing instead on the opinion’s reasoning as to the scope and substance of fundamental rights. Though commentators nodded at the prospect of democratic deliberation, it was principally in the context of judicial imperialism in the denomination of fundamental rights. Indeed, it would take roughly ten years for the critique of Roe as disrupting ongoing democratic deliberation on the abortion issue to surface concretely.

B. The Emergence of the Democratic Deliberation Argument

Shades of the democratic deliberation argument emerged in fits and starts in the years following Roe. And intriguingly, the interest in majoritarian deliberation of abortion policies and restrictions was most evident in the context of cases involving public funding for abortion services. In cases like Maher v. Roe⁴⁸ and Harris v. McRae,⁴⁹ both of which concerned the use of public funds for abortion services, briefs filed in support of the government policies emphasized the legislature’s critical role in translating the public’s preferences on abortion into public policy.⁵⁰

By the time the most robust articulation of the democratic deliberation narrative surfaced again, it was ten years after Roe. In that decade, the membership of the Court changed. Justices Douglas and Stewart, who had been in the Roe majority, retired and were replaced by Justices Stevens and O’Connor. As importantly, backlash against Roe had begun to emerge as antiabortion mobilization intensified.⁵¹ The Court’s consideration of City of Akron v. Akron Center for Reproductive Health, Inc.⁵² (Akron I), would reflect these changes on and off the court.

The Court in Akron I struck down a requirement that all second-trimester abortions be performed in hospitals, while sustaining several other abortion regulations.⁵³ Although the Court invalidated the challenged restriction, the decision prompted a spirited dissent from Justice O’Connor, a new Reagan appointee. Joined by Justices White and Rehnquist, the Roe dissenters, Justice O’Connor denounced Roe’s trimester framework as “unworkable,”⁵⁴ and accused the majority of using analysis “inconsistent both with the methods of analysis employed in previous cases dealing with abortion, and with the Court’s approach to fundamental rights in other areas.”⁵⁵ In addition to these concerns about Roe’s reasoning and logic, Justice O’Connor, herself a former state legislator, resurrected Justice White’s earlier view that when presented “with extremely sensitive issues,” like abortion, “the appropriate forum for their resolution . . . is the legislature. We should not forget that ‘legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’”⁵⁶

Perhaps buoyed by the growing number of Roe skeptics on the Court, Justice White waded back into the fray to press the point that Roe usurped state legislatures’ authority to decide the contested abortion issue — and to connect democratic deliberation to a more controversial point regarding the Court’s duty to adhere to past precedents. Dissenting from the Court’s decision in Thornburgh v. American College of Obstetricians & Gynecologists⁵⁷ invalidating several provisions of Pennsylvania’s abortion law, Justice White reiterated his view that Roe “‘departs from a proper understanding’ of the Constitution.”⁵⁸ But meaningfully, he also went further to make the case that stare decisis was not required in circumstances like Roe, where the decision “involve[s] our assumed power to set aside on grounds of unconstitutionality a state or federal statute representing the democratically expressed will of the people.”⁵⁹ As Justice White explained, decisions like Roe, which identified an unenumerated right to choose an abortion, “find in the Constitution principles or values that cannot fairly be read into that document,” and in so doing, “usurp the people’s authority, for such decisions represent choices that the people have never made and that they cannot disavow through corrective legislation.”⁶⁰ In such circumstances, Justice White mused, “it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken.”⁶¹

But if Justice White believed that stare decisis was not an inexorable command in circumstances where a decision intruded upon the prerogatives of the people and their representatives, other members of the Court were less convinced. Responding to Justice White’s assertion that “hotly contested moral and political issue[s] . . . are to be resolved by the will of the people,”⁶² Justice Stevens lodged an objection to unfettered majority rule.⁶³ Recalling Justice White’s earlier vote to invalidate Connecticut’s contraceptive ban in Griswold v. Connecticut,⁶⁴ Justice Stevens noted that abortion, like contraception before it, entailed issues “traditionally associated with the ‘sensitive areas of liberty’ protected by the Constitution.”⁶⁵ In circumstances involving such sensitive issues, Justice Stevens maintained, “no individual should be compelled to surrender the freedom to make that decision for herself simply because her ‘value preferences’ are not shared by the majority.”⁶⁶ That “the ‘abortion decision’ should be made . . . by the majority ‘in the unrestrained imposition of its own, extraconstitutional value preferences,’”⁶⁷ was in Justice Stevens’s view, a perversion of the Framers’ intent.⁶⁸ After all, he mused, “the lawmakers who placed a special premium on the protection of individual liberty have recognized that certain values are more important than the will of a transient majority.”⁶⁹

Still, despite Justice Stevens’s concerns, others endorsed Justice White’s view that abortion was a sensitive issue best suited for democratic deliberation — and that Roe, because it effectively deprived the people of their right to decide the issue through majoritarian politics, was not entitled to ordinary stare decisis effect. In its brief in Thornburgh in support of Pennsylvania, the United States made the point plain. Stare decisis, it explained, “does not count so strongly” in circumstances “[w]here a judicial formulation affecting the allocation of constitutional powers has proven ‘unsound in principle and unworkable in practice,’ [and] where it ‘leads to inconsistent results at the same time that it disserves principles of democratic self-governance.’”⁷⁰

A few years later, in cases like Webster v. Reproductive Health Services⁷¹ and Ohio v. Akron Center for Reproductive Health⁷² (Akron II), Justice Scalia, another new Reagan appointee, articulated a related critique of Roe grounded in democratic deliberation. In Webster, decided in 1989, Justice Scalia wrote separately to emphasize that abortion was “a political issue” — and one that “continuously distorts the public perception of the role of this Court.”⁷³ As a result of Roe, Justice Scalia lamented, the Court was flooded with “carts full of mail from the public, and streets full of demonstrators, urging us — their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will — to follow the popular will.”⁷⁴ To Justice Scalia, Roe — and judicial resolution of issues properly reserved to the political process — risked upending the Court’s institutional role, rendering it merely an adjunct of majoritarian politics. On this account, the Court’s uneasy settlement of the abortion question only provoked more public outcry — and challenges to the Court’s authority. A year later, in Akron II, Justice Scalia made the point more emphatically. Leaving the vexed question of abortion to the people was, he maintained, the only way to “produce compromises satisfying a sufficient mass of the electorate that this deeply felt issue will cease distorting the remainder of our democratic process.”⁷⁵ With this in mind, Justice Scalia urged his colleagues to “end [the Court’s] disruptive intrusion into this field as soon as possible.”⁷⁶

By the time the Court revisited the question of Roe’s continued precedential value in Planned Parenthood of Southeastern Pennsylvania v. Casey, the issue of democratic deliberation was front and center in the arguments and decisionmaking. In a lengthy dissent from the plurality opinion reaffirming Roe, Justice Scalia elaborated Justice White’s view of democratic deliberation. Abortion, Justice Scalia insisted, was an issue best left to the people: “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.”⁷⁷ But critically, Justice Scalia went further than Justice White, crafting an argument that Roe had not only wrongfully preempted democratic deliberation on a contested issue, but also, in so doing, provoked a national controversy “by elevating [the abortion question] to the national level where it is infinitely more difficult to resolve.”⁷⁸ As Justice Scalia explained, in stark contrast to abortion, the Court had left other contested issues, like the death penalty, to the states and the people — resulting in durable policy compromises that were “worked out at the state level.”⁷⁹ By virtue of the Court’s intervention, abortion now assumed national significance, eluding the kind of stable “state-by-state resolution” that characterized these other controversial questions.⁸⁰ This stalemate, Justice Scalia insisted, was a direct result of the Roe Court’s wrongheaded intervention. “Pre-Roe . . . political compromise was possible.”⁸¹

But if Justice Scalia viewed Roe — and Casey — as precluding popular resolution of a divisive issue, the Casey majority maintained that other popular concerns counseled in favor of retaining Roe and the abortion right. According to the plurality, discarding the principle of stare decisis and overruling Roe would weaken the Court’s legitimacy in the eyes of the public.⁸² And “[u]nlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters,” as “the loss of its principled character could not be retrieved by the casting of so many votes.”⁸³ Moreover, to the extent that those seeking to overrule Roe emphasized the decision’s impact on “the people,” the plurality noted that “for two decades . . . people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”⁸⁴ Though the plurality found it difficult to determine with specificity the reliance interests inherent in Roe, it made clear that there would be costs to overruling the decision “for people who have ordered their thinking and living around that case.”⁸⁵

Although Justice Scalia did not carry the day in Casey, his objections to Roe were easily translated into — and adopted by other conservative Justices in — the disposition of other controversial culture-war issues, including the legalization of same-sex marriage.⁸⁶ In 2015’s Obergefell v. Hodges,⁸⁷ a 5–4 decision announcing constitutional protection for same-sex marriage, Justice Scalia bemoaned the Court’s decision expanding the right to marry to include same-sex couples. “Until the courts put a stop to it,” he lamented, “public debate over same-sex marriage displayed American democracy at its best.”⁸⁸

Justice Scalia was not alone on this front. The Chief Justice and Justices Thomas and Alito also raised the issue of frustrated democratic deliberation in the context of the marriage equality debate.⁸⁹ Notably, Chief Justice Roberts underscored his interest in democratic deliberation with a pointed reference to the work of another “thoughtful commentator.”⁹⁰ In a 1985 article in the North Carolina Law Review, then-Judge Ruth Bader Ginsburg famously offered two critiques of the Roe decision: (1) that the Court had moved too aggressively to invalidate all criminal abortion statutes, preempting popular debate and provoking backlash; and (2) that the Court’s understanding of the constitutional rights at stake was too narrowly focused on the privacy of the pregnant woman and the medical judgment of her physician, and failed to consider the equality dimensions of the abortion question.⁹¹ Now that then-Judge Ginsburg was a member of the Court — and one of the five Justices who had voted to legalize same-sex marriage⁹² — the invocation of her earlier writing was both strategic and substantive. Pointedly ignoring Judge Ginsburg’s meditation on equality as a doctrinal home for the abortion right, Chief Justice Roberts instead focused on her observation that, prior to Roe, “[t]he political process was moving . . . [and] majoritarian institutions were listening and acting.”⁹³ The Court’s imperialism, then-Judge Ginsburg mused — and Chief Justice Roberts agreed — “was difficult to justify and appears to have provoked, not resolved, conflict.”⁹⁴

Scholars like Professors Reva Siegel and Linda Greenhouse have disputed then-Judge Ginsburg’s assessment of pre-Roe progress on abortion liberalization.⁹⁵ As they maintain, the landscape for democratic change was far more complicated than then-Judge Ginsburg’s description suggested.⁹⁶ And tellingly, despite her critique, as a member of the Court, Justice Ginsburg consistently voted to maintain the right to access abortion and contraception, linking reproductive freedom to women’s equal citizenship.⁹⁷ Likewise, on the question of same-sex marriage, Justice Ginsburg joined Justice Kennedy’s majority opinion in Obergefell, which noted that “democracy is the appropriate process for change” but only “so long as that process does not abridge fundamental rights.”⁹⁸ The opinion also observed that within our constitutional scheme, “individuals need not await legislative action before asserting a fundamental right.”⁹⁹

Despite Justice Ginsburg’s nuanced position on Roe, her democratic-deliberation-inflected critique of the decision has loomed large in both conservative and mainstream legal discourse.¹⁰⁰ Professor Jeffrey Rosen, for example, embraced, as then-Judge Ginsburg did, the equality dimensions of the abortion right,¹⁰¹ even as he decried the Roe Court’s “aggressive unilateralism.”¹⁰² Professor Cass Sunstein suggested that Roe “may well have created the Moral Majority, helped defeat the equal rights amendment, and undermined the women’s movement by spurring opposition and demobilizing potential adherents.”¹⁰³ Meaningfully, Sunstein also repeated the claim that a more durable state legislative resolution of the abortion question was in the offing when Roe short-circuited the process of democratic deliberation.¹⁰⁴ As he explained in a law review article published as the Court was preparing to reconsider the abortion right in Casey, “Roe may have taken national policy too abruptly to a point toward which it was groping more slowly, and in the process may have prevented state legislatures from working out long-lasting solutions based upon broad public consensus.”¹⁰⁵

This strain of Justice Ginsburg’s critique of Roe enjoyed pride of place in the majority’s disposition of Dobbs. Justice Alito, who cited few women authors in a decision that would affect countless women, cited then-Judge Ginsburg with obvious relish for the proposition that Roe improperly intervened in an ongoing popular debate, “spark[ing] a national controversy that has embittered our political culture for a half century.”¹⁰⁶

But perhaps Justice Alito doth protest too much? On his telling, Roe was not only “egregiously wrong” because it was unmoored from constitutional text; it was wrong — perhaps primarily wrong — because it improperly preempted an ongoing public debate over abortion, provoking a generation’s worth of backlash to abortion rights.¹⁰⁷ However, as we have traced, much of this narrative rests on unstable foundations. First, as several scholars have suggested, the popular debate to which Justice Alito adverted was more muted than his narrative suggested.¹⁰⁸ And, as we have detailed, at least initially, those who objected to the 1973 decision did so principally on the view that the decision misunderstood the nature of the rights at stake and reflected a brand of discredited judicial imperialism.

Second, the concern that Roe disrupted ongoing popular deliberation only emerged as countermobilization to abortion rights gained prominence. As scholarly and judicial critiques of Roe assumed their now-familiar contours, a related set of developments was unfolding in the antiabortion movement that had begun to coalesce in Roe’s wake. While abortion opponents were insistent on rolling back Roe with a court decision overruling the 1973 precedent, they also trained their attention on ratifying a federal constitutional amendment that would recognize and protect fetal life.¹⁰⁹ These efforts to amend the Constitution primarily took the form of a so-called Human Life Amendment, which would have explicitly protected fetal life.¹¹⁰ Although some antiabortion politicians of the time introduced or proposed constitutional amendments that would have merely overturned Roe by returning the abortion question to the states, much of the organized antiabortion movement withheld its support from such efforts if they did not also recognize fetal personhood. The National Right to Life Committee, which refocused its efforts in the wake of Roe,¹¹¹ even passed a resolution stating that “a ‘States Rights’ amendment would not effectuate . . . rejection of Roe but would rather reaffirm the Court’s decision.”¹¹² As legal historian Professor Mary Ziegler explains, “most movement members did not object to the Roe decision because the Court had removed the abortion question from the democratic process”; they objected because “the Court erred in leaving the unborn without the protection they deserved.”¹¹³ Banning abortion nationwide, not returning the issue to the states, was the movement’s goal.¹¹⁴

It was only when this effort to enact a constitutional amendment that would enshrine fetal personhood stalled in the late 1970s that abortion opponents adopted new strategies. One strategy — championed by a young Justice Department lawyer named Samuel Alito¹¹⁵ — involved chipping away at abortion access through regulations that made abortion increasingly difficult, expensive, or logistically complicated both to provide and to access.¹¹⁶ These efforts included state-level restrictions on abortion funding,¹¹⁷ and ultimately the Hyde Amendment, a federal appropriations rider that prohibited the use of federal funds, including Medicaid funds, for abortion, which the Court upheld in 1980.¹¹⁸

Significantly, the scuttling of the prospect of a constitutional amendment not only altered the substantive strategic priorities of the antiabortion movement, it also transformed their discursive strategies. With hopes of a fetal-personhood amendment dashed, many antiabortion activists began making arguments that sounded in the register of democratic deliberation — the idea that Roe had involved impermissible judicial overreach, and that abortion regulation should be a matter for states to address.¹¹⁹ Critically, these arguments were part of a deliberate strategy to articulate an antiabortion position that was more politically palatable than the prospect of banning abortion in all circumstances. To be sure, for movement leaders and many Americans who identified as pro-life, the democracy argument was a second-best, intermediate position — one that was fundamentally incompatible with the substantive position that the fetus was a person, and that any process that terminated a pregnancy was tantamount to murder.¹²⁰ From this perspective, allowing the states to decide whether to prohibit or to permit and even protect abortion was difficult to defend. But, with the prospect of a constitutional amendment well out of reach, many activists viewed this intermediate position as a necessary way station on the path that could lead first to Roe’s reversal, and then to the elimination of all protection for abortion. And so, taking the long view, the movement hitched its wagon to the north stars of democracy and popular deliberation.

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As this history reveals, the democratic deliberation argument that undergirded the Court’s disposition of Dobbs emerged in fits and starts, evolving and transforming over time to take its current form, which insists that Roe improperly preempted and frustrated ongoing democratic deliberation on the abortion question. To be sure, this contemporary articulation of the critique of Roe reflects essential aspects of earlier critiques, including critiques of Roe’s judicial imperialism. But the democratic deliberation argument, in its current form, is nonetheless meaningfully different from that which preceded it. Whereas the objections lodged in the immediate aftermath of Roe focused on the nature of the constitutional rights at stake and the contested nature of the abortion question, the present interest in democratic deliberation goes well beyond these concerns. As it has evolved — in tandem with the social movements opposing abortion in the wake of Roe — the democratic deliberation argument no longer objects to Roe solely on the view that the decision misidentified the right at stake and withdrew a contested issue from majoritarian politics; rather, it makes the case that, in addition to its flawed logic and incongruence with constitutional text, Roe’s countermajoritarianism is the crucial element that justifies abandoning stare decisis in order to overrule it.

With this in mind, the following Part considers the implications of the Dobbs majority’s embrace of the democratic deliberation argument for stare decisis and the consideration of extant precedents.

II. Democracy and Stare Decisis

In Dobbs, the Court invoked democracy and disrupted democratic deliberation to justify its decision to overrule Roe and Casey, two long-standing precedents of the Court. Under the principle of stare decisis, courts presumptively defer to past decisions on the same, or similar, issues.¹²¹ And while a court may overturn its own precedent, stare decisis principles favor doing so only in the face of compelling circumstances.¹²²

As we explain here, there are at least two ways to understand the Dobbs Court’s particular moves with respect to the relationship between democracy, public opinion, and stare decisis. The first possibility is that the Court’s invocation of democracy and democratic deliberation gestures toward an entirely new standard for stare decisis — one that holds that a past precedent is not entitled to stare decisis effect where its subject matter involves an issue that the Court believes to be of high salience to the American people, and where, in the Court’s view, the precedent has interrupted the prospect of democratic deliberation of the issue. The second possibility is that an earlier decision’s arguable interruption of democratic deliberation qualifies as a “special justification” that blunts the stare decisis force of a prior opinion. We further consider each of these below. We then investigate the possible implications of the Court’s new approach to stare decisis, however it is best understood, for other important precedents.

A. A New Stare Decisis Test?

Although the Dobbs Court made plain its contempt for the core holdings of Roe and Casey, the test it employed in overturning those precedents was remarkably underspecified. The Dobbs majority criticized Casey for affirming “Roe’s ‘central holding’ based solely on the doctrine of stare decisis.”¹²³ More particularly, the Dobbs majority took the view that “proper application of stare decisis required an assessment of the strength of the grounds on which Roe was based” — an inquiry that, according to the Dobbs majority, the Casey plurality failed to conduct.¹²⁴ The Dobbs Court therefore considered afresh “the question that the Casey plurality did not consider”: whether “the Constitution, properly understood, confers a right to obtain an abortion.”¹²⁵ Upon concluding that the right to abortion was not deeply rooted in history and tradition, and not an essential component of ordered liberty,¹²⁶ the Dobbs majority then turned to consider explicitly the question of stare decisis.¹²⁷ But curiously, even as the Dobbs Court repudiated Casey’s view that the Constitution protected a right to abortion, it was far less clear about what its holding meant for Casey’s other jurisprudential contribution — the test it announced for stare decisis.¹²⁸

For many years, Casey had supplied the canonical formulation of the Court’s approach to stare decisis. And indeed, Supreme Court nominees have signaled their commitment to judicial restraint and the rule of law by pledging fealty to the principle of stare decisis.¹²⁹ Casey spent considerable time elaborating the role of stare decisis in its decision to retain and reaffirm Roe, explaining:

[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.¹³⁰

The decision then proceeded to identify a series of factors that courts should consider in determining whether to defer to an extant precedent, including “practical workability,” “reliance” on the precedent, as well as any significant developments in “related principles of law,” and “whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.”¹³¹ Applying this lens to Roe, the lead opinion in Casey concluded:

Because neither the factual underpinnings of Roe’s central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973.¹³²

Moreover, the Casey opinion intoned, “a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.”¹³³ With these considerations in mind, Casey affirmed Roe’s “central holding” that the Constitution protected some measure of individual right to choose abortion.¹³⁴

It is striking that Dobbs did not so much as note Casey’s status as “precedent on precedent”¹³⁵ in embarking on its own discussion of stare decisis. Rather, it offered what it described as five factors, that, taken together, “weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.”¹³⁶ For this five-part analysis, Dobbs cited just two precedents¹³⁷: Janus v. AFSCME, Council 31¹³⁸ and Justice Kavanaugh’s concurrence in Ramos v. Louisiana.¹³⁹ Meaningfully, in both Janus and Ramos, the Court overruled two 1970s-era precedents, Abood v. Detroit Board of Education¹⁴⁰ and Apodaca v. Oregon.¹⁴¹

It is perhaps unsurprising that the Dobbs Court focused mainly on Janus and Ramos. These two cases embodied the Roberts Court’s preferred approach to stare decisis — an approach that it honed in a series of other cases where Justices on the newly constituted Court never mentioned Roe and Casey, but nonetheless appeared to be shadow-boxing with the future of a constitutional right to abortion.¹⁴² In Janus, for example, Justice Alito’s majority opinion discussed stare decisis at length without once citing Casey.¹⁴³ Instead, the Court’s analysis focused on the merits of the underlying constitutional claim — whether a union fair-share fee arrangement violated the First Amendment — and whether the 1978 Abood case had incorrectly concluded it did not.¹⁴⁴ Forced to reckon with Abood as precedent, the Court dispatched quickly with its five-part stare decisis test, focusing principally on the first two factors — the earlier precedent’s error and its poor reasoning.¹⁴⁵ Relying on these considerations, the Janus Court concluded that these concerns obviated the need to adhere to Abood.¹⁴⁶ In this regard, Janus’s perfunctory performance of stare decisis made clear that the pressing question in determining whether to follow an extant precedent was simply whether the current Court agreed with the earlier Court’s substantive conclusions.

Decided two years after Janus, Ramos approached the question of whether to overrule a long-standing precedent, Apodaca v. Oregon, in a similar fashion. As with Janus, the Ramos majority failed to cite Casey; the Kavanaugh concurrence cited it only to make the point that Casey itself had overruled several abortion precedents¹⁴⁷ (presumably in an effort to broaden support for the position that overruling precedents is sometimes justified). Ramos, like Janus, began with a thorough meditation on the correct answer to the substantive question at issue —whether the Sixth Amendment right to conviction by a unanimous jury applied in state as well as federal court.¹⁴⁸ After concluding that it necessarily did,¹⁴⁹ the Ramos Court then invoked its understanding of the traditional stare decisis factors: “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.”¹⁵⁰ Justice Gorsuch’s majority opinion then offered a complex rationale under which the key precedent, Apodaca, was not owed full stare decisis effect, given its fractured status.¹⁵¹

In a lengthy concurrence, Justice Kavanaugh sought to clarify this approach to stare decisis, offering a framework that emphasized that under the Court’s “precedents on precedent,” some “special justification” is required “[t]o overrule a constitutional decision.”¹⁵² With this in mind, Justice Kavanaugh collapsed the seven distinct stare decisis factors identified in earlier cases¹⁵³ into three broad factors: (1) whether the decision was not just “garden-variety” wrong, but “grievously or egregiously wrong”;¹⁵⁴ (2) whether the prior decision has “caused significant negative jurisprudential or real-world consequences”;¹⁵⁵ and (3) whether “overruling the prior decision [would] unduly upset reliance interests.”¹⁵⁶

Taken together, Janus, Ramos, and Justice Kavanaugh’s Ramos concurrence offered different versions of Casey’s stare decisis calculus, but not radically different ones. And on its face, the Dobbs majority deployed a stare decisis calculus that resembled the tests used in Janus and Ramos, and even Casey.¹⁵⁷ But in its application of this test, the Dobbs majority may have broken new ground. The five-factor test that the Dobbs majority referenced at the beginning of its stare decisis analysis makes no explicit mention of democracy or democratic deliberation. Yet, the majority opinion emphasized repeatedly the importance or salience of democracy and democratic deliberation — and Roe’s disruption of democratic deliberation.

In the section titled “The Nature of the Court’s Error,” the Dobbs majority explained that “Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people.”¹⁵⁸ But it was not just that Roe and Casey concerned issues of great import — it was that these were issues that “the Constitution unequivocally leaves for the people.”¹⁵⁹ In this regard, the Court’s decisions in Roe and Casey “usurped” the people’s authority to decide these questions for themselves.¹⁶⁰ To underscore the point, the majority connected its denunciation of Roe and Casey to other historical rulings, citing with approval West Coast Hotel Co. v. Parrish,¹⁶¹ a 1937 decision in which the Court also “overruled decisions that wrongly removed an issue from the people and the democratic process.”¹⁶²

To be sure, the Dobbs majority did not suggest that it was reformulating the long-standing test for stare decisis deference. But taken together, the majority’s novel approach to the questions of fidelity to precedent is striking. Under the Dobbs formulation, in addition to the factors announced in Casey and discussed in Janus and Ramos, courts are justified in overruling extant precedents in circumstances where the precedent involves important or sensitive subject matter, and where the Court’s earlier intervention halted or thwarted democratic deliberation. And critically, these democracy-inflected codicils to the traditional stare decisis factors are not only novel — they are almost entirely subjective. That is, it is for the reviewing court to determine whether an issue is of profound importance to the electorate.¹⁶³ And it is for the reviewing court to determine whether earlier judicial interventions constitute a disruption of democratic deliberation.

The same charges of subjectivity also might be lodged against the previously announced stare decisis factors. That is, reliance, workability, and faulty reasoning might all be in the eye of the beholding court. What distinguishes these democracy-inflected factors from the traditional stare decisis factors articulated in Casey and referenced in Janus and Ramos — and indeed, makes them so concerning — is the fact of their rhetorical power. By overruling extant precedents in the name of the people, the Court may take dramatic steps that serve a different brand of judicial imperialism — all while cloaking the maneuver in the mantle of democracy and popular sovereignty.

B. Interrupted Democracy as a “Special Justification”?

As discussed above, in the years immediately preceding Dobbs, the Justices of the Roberts Court clashed over the nature and strength of stare decisis in a series of cases involving 1970s-era precedents.¹⁶⁴ A number of these cases sought to identify the sort of “special justification” that would justify a departure from stare decisis. In Ramos, Justice Gorsuch’s majority opinion pointed to the fact that the Court’s 1972 opinion in Apodaca v. Oregon “failed to appreciate the ‘racist origins’ of the [challenged] rule” permitting nonunanimous jury verdicts.¹⁶⁵ The earlier Court’s failure to grapple with the racism embedded in the legal rule, the Ramos Court concluded, constituted a “special justification” that justified departing from stare decisis.¹⁶⁶

And in the run-up to Dobbs, it appeared that the Court might rely on some version of this racially inflected argument to strike down Roe and Casey.¹⁶⁷ Indeed, Justice Thomas’s concurrence in the denial of certiorari in 2019’s Box v. Planned Parenthood of Indiana & Kentucky, Inc.¹⁶⁸ gestured in this direction.¹⁶⁹ There, Justice Thomas “associated abortion with eugenics and the rise of the modern birth control movement,”¹⁷⁰ apparently laying the groundwork for a determination that race — and the imperative of remedying past discrimination in the name of racial justice — furnished the “special justification” required to overrule Roe and Casey.¹⁷¹

But if Ramos and Box prioritized an interest in remedying past racial injustices as a “special justification” in the stare decisis analysis, then Dobbs has gone further to identify remedying past judicial impositions on democracy and ongoing democratic deliberation as constituting a “special justification” for departing from extant precedent.

While the introduction of a new special justification category may appear to be a relatively modest change to the existing stare decisis calculus, this development is cause for alarm. The question of whether democratic deliberation was ongoing — and productively moving toward some state-level resolution — is not an objective assessment. As we have discussed, the question of whether Roe interrupted ongoing democratic debate on abortion rights has been — and continues to be — the subject of considerable debate.¹⁷² As the Dobbs majority presented it, the question of whether a past precedent improperly arrested ongoing popular debate is subject entirely to whether five members of the Court agree that it did. Far from remedying judicial imperialism, the introduction of this new special justification is itself the embodiment of judicial imperialism. And, as importantly, the invocation of democratic deliberation provides cover for this kind of judicial imperialism. It insists that the Court is not imposing its own view of extant precedents, but rather is simply overruling these precedents in order to vindicate the rights of the people and to preserve democratic engagement. It is an enlargement of the judicial role under the guise of narrowing it. And it has potentially alarming implications for other cases and issues that may involve similarly fraught and divisive questions.

C. Implications for Other Cases

What other precedents of the Court might a new stare decisis formulation implicate? What prior precedents might be affected by a Court that is increasingly willing, even eager, to identify “special justifications” that justify departing from precedent? If the Court’s new vision of stare decisis is concerned with an issue’s “importance to the American people,”¹⁷³ and whether an earlier opinion “usurped the power to address a question of profound moral and social importance,”¹⁷⁴ it is likely that Obergefell v. Hodges, in which the Court held that the Constitution did not permit states to restrict marriage to opposite-sex couples,¹⁷⁵ is high on the list of possible targets.

The Court decided Obergefell during a moment of undeniable churn in state marriage laws. Just two Terms earlier, the Court in United States v. Windsor¹⁷⁶ invalidated Section 3 of the Defense of Marriage Act¹⁷⁷ (DOMA), which limited the definition of marriage under federal law to heterosexual couples. Although Justice Kennedy’s opinion for the Court in Windsor singled out “state sovereign choices about who may be married,”¹⁷⁸ pointedly noting that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State,”¹⁷⁹ Justice Scalia was unconvinced. In dissent, he predicted that the majority’s conclusion that “DOMA is motivated by ‘bare . . . desire to harm’” same-sex couples could easily be extended “to reach the same conclusion with regard to state laws denying same-sex couples marital status.”¹⁸⁰

Sharing Justice Scalia’s concerns about the sweeping possibilities of the Windsor majority opinion, Chief Justice Roberts dissented separately to emphasize the states’ “historic and essential authority to define the marital relation.”¹⁸¹ The point was a subtle defense of state-level democratic deliberation. On Chief Justice Roberts’s telling, the states had long enjoyed the authority to define marriage for their residents, and the chosen definition of marriage ostensibly reflected the preferences of a majority of the state’s voters. Windsor, the Chief Justice underscored, did no more than reaffirm the state’s authority to define marriage, and going forward, states were free to express their residents’ preferences for “the traditional definition of marriage.”¹⁸²

If the Chief Justice nodded subtly to the prospect of democratic deliberation in defining marriage, Justice Scalia was more straightforward in voicing his concerns. In his lengthy Windsor dissent, Justice Scalia emphasized both the importance of marriage in public life and the importance of debates about marriage equality. As he explained: “Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides.”¹⁸³ On this account, he observed, the issue was one that properly was being debated in the political process through “plebiscites, legislation, persuasion, and loud voices — in other words, democracy.”¹⁸⁴

Justice Alito echoed these objections in his own dissent in Windsor. Explaining that “[o]ur Nation is engaged in a heated debate about same-sex marriage,”¹⁸⁵ Justice Alito insisted that both Edith Windsor, the Windsor respondent, and the federal government were, despite the limited nature of their claims before the Court, intent on disrupting that debate and “enshrin[ing] in the Constitution a particular understanding of marriage under which the sex of the partners makes no difference.”¹⁸⁶ Doing so, Justice Alito maintained, would require the Court to act beyond its constitutionally prescribed role. The Constitution, Justice Alito intoned, “simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.”¹⁸⁷

Two years later, in Obergefell v. Hodges, a 5–4 majority of the Court concluded that the Constitution recognized a right to same-sex marriage,¹⁸⁸ answering the question that had lurked at the periphery of Windsor.¹⁸⁹ The decision prompted a series of vehement dissents, all of which underscored the state’s prerogative to define marriage, as well as the democratic underpinnings of such authority.¹⁹⁰ Writing separately, Justice Scalia sounded the alarm, “call[ing] attention to this Court’s threat to American democracy.”¹⁹¹ Chief Justice Roberts’s dissent struck similar notes, accusing the Court of having “seize[d] for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.”¹⁹² Justices Thomas and Alito agreed: Obergefell, and by that logic, Windsor, represented the Court’s usurpation of issues that were properly being debated and deliberated by the people.¹⁹³

Recalling the language of these dissents in the Court’s consideration of same-sex marriage is revealing. These dissents bear a striking resemblance to much of the stare decisis reasoning on display in Dobbs. The dissenters in Windsor and Obergefell emphasized the presence of an issue of significant salience to the public, in addition to the significant ongoing public debate the Court’s intervention halted. If these indeed are now important factors in identifying a precedent’s likelihood of being overruled, there is every reason to fear that Obergefell could be next.

While the Court’s present supermajority suggests that Obergefell could be a likely candidate for reconsideration, in truth, the Dobbs Court’s approach to stare decisis, if fairly applied, could also call into question other recent decisions like District of Columbia v. Heller¹⁹⁴ and New York State Rifle & Pistol Ass’n v. Bruen,¹⁹⁵ both of which considered the scope and substance of the Second Amendment. If Obergefell is understood as interrupting ongoing state-level debates on the issue of marriage equality, then surely a similar critique could be levied against Heller and Bruen.

As with marriage equality, the public was, for years, engaged in an active debate over gun rights and gun safety laws. And often, these debates, like the debates over marriage equality, took on different policy contours in different jurisdictions. In 2007, one year before the Court decided Heller, gun safety laws varied widely across states.¹⁹⁶ In 2021, one year before Bruen was decided, the variance in the number of gun control laws in place per state was similarly notable.¹⁹⁷ Critically, over the past fifteen years since Heller was decided, different states have had vastly different sets of gun control laws.¹⁹⁸ These variations in policy approaches to the issue of gun control and gun violence all make clear that at the time Heller, and subsequently Bruen, were decided, there was no coordinated national policy response to the issue of gun rights, as well as wildly variable views — democratic deliberation, if you will! — within different jurisdictions about the appropriate policy interventions.

And yet, despite the wide variation in legislative responses across jurisdictions, the Court in Heller and Bruen interrupted this active debate over gun rights and gun safety to recognize a muscular and expansive right to keep and bear arms.¹⁹⁹ On this account, if judicial disruption of an extant debate over an issue of high salience to the public is the criteria for reconsidering past precedent — however recently decided — then Heller and Bruen, as much as Obergefell, are ripe for reconsideration.

Of course, it is highly unlikely that the Court, as currently constituted, would reconsider Heller and Bruen, the twin pillars of a reinvigorated Second Amendment. Perhaps more likely is the reconsideration of Obergefell — and indeed, at least two members of the current Court have indicated their receptivity to doing so.²⁰⁰ Further, the addition of the new Trump Justices, whose own views of stare decisis have effected significant changes in the Court’s jurisprudence,²⁰¹ suggests that there is a possible majority that, at the very least, would be willing to consider whether judicial resolution of marriage equality went too far, frustrating the will of the people, even as it overlooks such deliberation in other contexts.²⁰²

* * *

Having canvassed the implications of Dobbs for stare decisis and the Court’s jurisprudence more generally, the following Part takes seriously the Dobbs majority’s claim that overruling Roe and returning the abortion question to the states — and the people — is the appropriate outcome. As this Part explains, despite the majority’s rhetorical paeans to democracy, its understanding of democracy and democratic deliberation and participation is shockingly myopic and limited. Moreover, due in large part to the Court’s own decisions in the areas of voting rights and election law, the landscape in which democratic deliberation of the abortion question is fated to occur has been woefully distorted, making the prospect of meaningful democratic debate and deliberation elusive.

III. Myopic Democracy

The Dobbs majority insisted that its opinion rested on and implemented principles of democracy.²⁰³ But the irony of Dobbs is that it purported to “return” the issue of abortion to the democratic process while revealing an extraordinarily limited, even myopic, conception of democracy.²⁰⁴ This includes myopia in terms of the processes and institutions that the Court understands as constitutive of democracy; myopia in orientation — that is, the direction of change the opinion expects the mechanisms of democracy to produce; myopia in the opinion’s conception of political power and of who is properly within the political community; and myopia in the Court’s failure to grasp the antidemocratic quality of the method it utilizes for identifying the rights worthy of protection.

The sections that follow detail these limitations in the Court’s conception of democracy. But in focusing on these limitations, we do not mean to suggest that they are the only such limitations. Indeed, there is perhaps a more fundamental problem with the Court’s conception of democracy, which is that it appears to equate democracy with simple majoritarianism.²⁰⁵ In fact, however, genuine democracy arguably demands much more.²⁰⁶

A. Alternative Conceptions of Democracy

We do not aim to offer here a novel theory of democracy. But political theorists have identified a number of core features of democracy, and we briefly discuss them in turn. First, and perhaps most impor­tantly, any meaningful conception of democracy requires that citizens enjoy genuine political equality, which Professor Jeremy Waldron has described as “the foundation of democracy.”²⁰⁷ As a practical matter, this means that all members of the polity must possess both an equal right to participate and an equal and meaningful opportunity to par­ticipate in decisions about collective self-governance.²⁰⁸ It also means that, in matters of self-governance, individuals must stand in relation to one another as political equals, without distinction and without formal hierarchies.²⁰⁹

In addition, although regular elections are of course a core feature of democracy, the fact of elections is merely a baseline: democracy requires genuine competition and meaningful choice at those elections.²¹⁰ It also requires procedures that are conducted “under certain background conditions.”²¹¹ There is, of course, active debate about the character, scope, and necessity of those background conditions, but at a minimum they include features like the opportunity for meaningful deliberation,²¹² as well as some key predicates to that deliberation — the opportunity to engage in speech and expression; an independent press; the ability to associate.²¹³

Democracy may also contain, as Professor Nelson Tebbe has suggested, a prohibition on the coercion of citizens “for reasons that are inaccessible to them, or that they could never understand or accept.”²¹⁴ This principle does not, of course, require that individuals approve of or desire regulations to which they are subject. But they “must be able to cognize, and contend with, the laws’ purposes.”²¹⁵

The protection of minorities, who may face impediments in protecting their interests in majoritarian politics, is also a critical aspect of meaningful democracy. As the political philosopher Danielle Allen argues, when it comes to the core features of democracy, “[m]inority-protecting mechanisms . . . are just as important as majority vote.”²¹⁶ Those mechanisms can take the form of identifying alternative sites at which, and ways in which, electoral minorities can exercise political power.²¹⁷

Relatedly, on many accounts — including that of political theorist Robert Dahl — pluralism is a central feature of American democracy.²¹⁸ Here, we mean pluralism not just in terms of the processes of negotiation, competition, and contestation by which interest groups form shifting coalitions to advance policy goals, but also in the sites and sources of democracy. That is, for America to have a functioning democracy, “[i]nstead of a single center of sovereign power there must be multiple centers of power, none of which is or can be wholly sovereign.”²¹⁹ As philosopher Timothy Garton Ash recently explained in an interview: “[W]hat distinguishes a tyranny of the majority from a genuine democracy is precisely pluralism. It’s not majority-takes-all. It’s the fact that there are anti-majoritarian institutions.”²²⁰ This means that a functioning democracy not only reflects the popular will but does so in the face of antimajoritarian influences or devices that coexist within majoritarian institutions. On this account, a true democracy demands institutions that stand somewhat apart from majoritarian politics — including, crucially, independent courts that may serve as a check on majoritarianism.²²¹

Again, this account of the features of a functioning democracy is not intended to be fully detailed and comprehensive. Instead, in offering these broad brushstrokes, we seek only to emphasize that meaningful democracy entails more than a system by which important decisions are made by plurality or majority vote. Against this backdrop, a close examination of the Dobbs Court’s deployment of democracy reveals profound limitations in the Court’s conception of democracy, even on the Court’s own (limited) terms.

B. Examining the Court’s Myopia

Mindful of what a more robust conception of democracy might entail, we now turn to the Court’s more limited vision of democracy. As we detail below, even on the Court’s cramped understanding of democracy as coextensive with majoritarianism, a close examination of Dobbs reveals the Court’s appeal to democracy to be shallow, underdeveloped, and profoundly cynical.

1.  Institutional Myopia. — First, when the Dobbs majority discussed democracy, it focused almost exclusively on state legislatures, repeatedly invoking those bodies as the paradigmatic representation of democracy.²²² Consider the Court’s claim that its decision to overrule Roe “allows women on both sides of the abortion issue to seek to affect the legislative process.”²²³ Or its explanation that “the Casey plurality’s speculations and weighing of the relative importance of the fetus and mother represent a departure from the ‘original constitutional proposition’ that ‘courts do not substitute their social and economic beliefs for the judgment of legislative bodies.’”²²⁴ Or its insistence that “the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies.’”²²⁵

But state-level democracy is in no way coextensive with state legislative activity, as Justice Alito seemed to suggest in Dobbs. In fact, as scholars like Professor Miriam Seifter have shown, state legislatures are often the least representative institutions in state government,²²⁶ largely because of the gerrymandering that the Supreme Court has approved.²²⁷ Further, the emphasis on state legislatures as arbiters of democracy belies the role that state judiciaries have played in interpreting state constitutional provisions, including to protect reproductive rights.²²⁸ Surely Justice Alito knew that state courts in places like Iowa and Kansas had found abortion protections in state constitutions,²²⁹ and that in many states, judicial candidates run for office statewide.²³⁰ On this account, some jurists on state high courts are selected by many more voters than select the average member of a state legislature — perhaps by even more voters than select a majority of the state legislature.²³¹

To be clear, the point is not that elected judges “represent” voters in precisely the same way legislative representatives do,²³² or are imagined as doing.²³³ Rather, our point is more straightforward and modest: that state judges and state courts are critical players in state-level democracy.²³⁴

Beyond the role of state courts in state democracy, state executive-branch officials are also important players in forging state law.²³⁵ Executive-branch officials, again in contrast to state legislative officials, are typically elected statewide.²³⁶ Governors may veto restrictive abortion laws, including on grounds of state constitutional principles.²³⁷ Attorneys general, who in most states are elected,²³⁸ may utilize enforcement discretion,²³⁹ and even intervene in ongoing litigation,²⁴⁰ to implement abortion policy. Other state officials, whether appointed or independently elected,²⁴¹ may issue rules and take other regulatory action that facilitate or impede access to abortion.²⁴² They, too, are absent from the Court’s conception of state-level democracy. So are local officials, who are important players in implementing abortion policy²⁴³ and are similarly absent from the majority’s discussion.

Perhaps even more conspicuous is the Court’s failure to mention the prospect of direct democracy in its discussion of democratic deliberation on the abortion issue. Today, roughly half of the states have at least some mechanisms by which the people can make and change policy directly, without any legislative intermediaries.²⁴⁴ The post-Dobbs era has already seen significant activity on this front, with a number of states relying on ballot initiatives and voter referenda to protect reproductive rights under state law, as well as attempts — so far unsuccessful — to use direct democracy to curtail those rights.²⁴⁵

Beyond overlooking the array of opportunities for state-level de­mocratic deliberation, Justice Alito’s Dobbs opinion was also curiously silent on the prospect of the federal legislature as a site of future democratic deliberation on abortion rights. Congress, of course, could regulate abortion under federal law; indeed, in 2003, Congress prohibited an abortion procedure it termed “partial-birth abortion,”²⁴⁶ and the Court upheld that law in the 2007 case Gonzales v. Carhart.²⁴⁷ Despite this recent history, there is not a whisper of the possibility of federal legislation in Justice Alito’s majority opinion — a fact made all the more notable by Justice Kavanaugh’s explicit acknowledgement of this possibility in his concurrence.²⁴⁸

In short, democracy is not coextensive with state legislatures, particularly given the formalized conception of the state legislature on display throughout the Dobbs opinion.²⁴⁹ But it is nonetheless striking, and likely no accident, that the opinion chose to single out state legislatures as the paradigmatic engine of state-level democratic deliberation. As a result of their inherent structure, as well as the effects of gerrymandering, state legislatures are likely today to be less responsive to and reflective of majority will than other democratic institutions.²⁵⁰ Tellingly, state legislatures’ failures to implement the policy preferences of voters is particularly stark when it comes to abortion: consider a state like Oklahoma, where fifty-one percent of the population supports access to legal abortion in most or all circumstances, but in which the state legislature has enacted one of the most sweeping abortion bans in the country.²⁵¹

2.  Directional Myopia. — In addition to equating democracy with state-level legislative action, the Dobbs majority appeared fixated on deploying democracy in one direction — limiting, rather than expanding, access to abortion. Specifically, the opinion insisted that overturning Roe and returning the issue of abortion to the states (or at least state legislatures) would “allow[] women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office”; it also noted that “[w]omen are not without electoral or political power.”²⁵²

But tellingly, the Court’s repeated references to democratic deliberation imagined democratic interventions that curtail, rather than preserve or expand, reproductive rights. For example, the majority explained: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”²⁵³ Similarly, the opinion reasoned: “The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. . . . Together, Roe and Casey represent an error that cannot be allowed to stand.”²⁵⁴ Indeed, the only time the opinion spoke in concrete terms about abortion regulation, it credited potential state efforts to make abortion more restricted, and less accessible. There was one passing mention of a state that might wish to protect abortion.²⁵⁵ But that reference was paired with a much more detailed reference to the Mississippi law challenged in Dobbs, whose proponents the Court credited as animated by a belief that “abortion destroys an ‘unborn human being.’”²⁵⁶

It is true, of course, that Roe and Casey limited only state efforts to restrict or prohibit abortion. But given the majority’s repeated reminders that, before Roe, debate was occurring and proponents of liberal abortion rights had succeeded in some measure in persuading their fellow citizens of the rightness of their cause,²⁵⁷ it is curious that the Dobbs opinion did not admit the possibility that democratic deliberation might yield outcomes that are favorable to abortion rights. With all of this in mind, the majority’s failure to make plain that its decision did not impede democratic efforts to protect abortion rights is, by itself, revealing.

This oversight is especially pronounced when compared to Justice Kavanaugh’s separate concurrence, which despite its praise for the majority’s historical reasoning,²⁵⁸ staked out a somewhat different position. There, Justice Kavanaugh suggested that states could not seek to prohibit interstate travel for abortion care²⁵⁹ and reiterated the view that the Constitution is “neutral” on abortion.²⁶⁰ To wit:

To be clear . . . the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process. Through that democratic process, the people and their representatives may decide to allow or limit abortion. As Justice Scalia stated, the “States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.” Today’s decision therefore does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion.²⁶¹

Justice Kavanaugh’s language is striking — both in its endorsement of a state-by-state settlement of the abortion question, and in highlighting the majority’s neglect of any discussion (or even acknowledgment) of the prospect of state-level democratic efforts to protect abortion rights.

3.  Political Power Myopia. — The Dobbs majority opinion’s limited view of the direction of democratic change is matched by its exceedingly limited vision of political power. According to the majority, “[w]omen are not without electoral or political power.”²⁶² Critically, on this conception, political power is reducible to voting and perhaps running for office.²⁶³ But who decides that women have ample political power? It is true, as Justice Alito noted,²⁶⁴ that when it comes to participation, women today are registered to vote and turn out to vote at higher rates than men.²⁶⁵ But — even putting to one side the significant obstacles women, who are often the principal caregivers in the family, must surmount to actually exercise the franchise²⁶⁶ — if we use any metrics beyond simply voting to measure democratic participation, the empirical portrait looks decidedly different.

When it comes to membership in state and local government, for example, women are grossly underrepresented. Today, women occupy 32.7% of the 7,386 seats in state legislatures.²⁶⁷ In some states, the number of women serving in the state legislature is far lower; in Mississippi, for instance, where Dobbs arose, the state legislature is composed of 14.4% women.²⁶⁸ In West Virginia the number is 11.9%,²⁶⁹ and in Tennessee it is 15.2%.²⁷⁰ This underrepresentation in state legislatures is striking — particularly in view of Justice Alito’s suggestion that democratic deliberation of the abortion question should properly be reserved for state legislatures. State and local executive-branch offices are even more lopsided: Today, in cities and towns with populations over 30,000, only 25.8% of mayors and comparable local officials are women.²⁷¹ And governorships fare still worse: a mere twelve U.S. states, and the U.S. territory of Guam, have women in the governor’s mansion.²⁷²

The composition of the federal legislature is also uneven in terms of gender representation. Just 25 women serve in the United States Senate, and 125 women serve in the United States House of Representatives.²⁷³ These figures represent only about a quarter of each chamber. And notably, the women who do attain seats in the federal legislature tend to be significantly older than their male counterparts.²⁷⁴ Research suggests that women enter elected office later in life, often after having children or even after their children have left home.²⁷⁵ In the 116th Congress, for example, the average age for members was forty-seven; by contrast, the average age for female members was sixty-four, nearly twenty years older.²⁷⁶ The most recent election, post-Dobbs, reflected a narrowing of this gap, with an average age of forty-six for Congress’s incoming women members, much younger than the average age of women in Congress overall.²⁷⁷

State legislatures reflect a similar age imbalance in representation (although data here are more dated). In 2001, 39% of male state legislators were under fifty, while only 24% of female state legislators were under fifty.²⁷⁸ “While 28 percent of male state senators and 30 percent of male state representatives entered office when they were 40 years old or younger, the same was true of only 11 percent of female state senators and 14 percent of female state representatives.”²⁷⁹

Women are also woefully underrepresented in the ecosystem that surrounds Congress. As scholars have shown, from 2008 to 2015, “wo­men account[ed] for only 37% of the lobbyist[s] . . . in Washington.”²⁸⁰ Women are also much less likely than men to donate to political candidates. In fact, a 2020 study by the Center for American Women and Politics showed that men out-donated women in state legislative elections by a 2:1 ratio.²⁸¹ Studies confirm these disparities in federal elections, both congressional and presidential; a recent paper analyzing contributions from 1980 to 2008 found that in 1980, women made only a little more than 20% of federal campaign contributions and that by 2008 the number was still a little less than 37%.²⁸² Another recent study found an even starker divide in the context of women of color, who accounted for merely 2% of individual contributions to House races in 2010, despite constituting approximately 18% of the population.²⁸³

By any measure, these metrics make plain the enduring disparity in women’s political power at both the state and federal levels. And important recent work reveals the impact of women’s representation (or more often, underrepresentation) on abortion policy: “[T]here is a very significant relationship between women’s presence in the legislature and the degree of permissiveness of abortion policy,” with legislatures that contain higher percentages of women enacting policies that are more protective of abortion access.²⁸⁴

Further, the Court’s uncritical account of women’s political power is linked to its limited understanding of who comprises the polity. On one level, the Court’s vision of the polity is limited to those who have managed to overcome state-imposed obstacles to voting — obstacles that the Court, through many of its voting rights decisions, has credited and blessed.²⁸⁵ On another level, however, the Court’s vision of democratic deliberation prioritizes and privileges moments of democratic debate that included only some members of the political community. For example, when the Dobbs majority insisted that Roe interrupted state-level debate and deliberation of the abortion issue, it was often referring to mid-twentieth-century debates over whether to repeal or liberalize then-extant abortion restrictions. What is missing from the Court’s account of these debates is the fact that the laws and policies being debated were enacted through democratic processes that were categorically closed to all but white men. That is, they were democratic processes in which “the polity” affirmatively did not include women and people of color.²⁸⁶ On this account, the “debates” that Roe preempted — and that the Dobbs majority prioritized and sought to vindicate in returning the abortion issue to the states — were debates over whether to retain or liberalize laws enacted under conditions of extreme democratic deficit.

And meaningfully, the impulse to tout such laws as reflective of democratic deliberation endures in the aftermath of Dobbs. Consider the recent debate over Wisconsin’s 1849 abortion prohibition.²⁸⁷ This prohibition, which predates the Nineteenth Amendment by 70 years and the Wisconsin Constitution’s amendment granting women’s suffrage by 85 years,²⁸⁸ was enacted at a time when women were without formal political power. Despite this demonstrably undemocratic provenance, Republican politicians now argue that post-Dobbs, the state should be permitted to enforce the 1849 law, which remained on the books after Roe in a state of desuetude.²⁸⁹ And critically, even though women and people of color are eligible to participate, the current “debate” over whether the law should remain in force is unlikely to produce true democratic deliberation. Wisconsin is subject to one of the worst gerrymanders in the country, meaning that there is virtually no prospect of repealing the 1849 law through ordinary legislative processes.²⁹⁰

4.  Methodological Myopia. — Finally, the method the Court used in overruling Roe and Casey and concluding that the Constitution does not protect the right to terminate a pregnancy reveals the hollowness of the Court’s professed commitment to principles of democracy. The Court held that when determining whether an unenumerated right is nevertheless a protected liberty, courts must look to “history and tradition.”²⁹¹ In the words of the opinion: “[G]uided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty.’”²⁹² Focusing on that question, Justice Alito concluded that “in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.”²⁹³

But on what does the Court’s history-and-tradition analysis rely? As the Dobbs majority made clear, its prescribed methodology consisted primarily of examining a slew of mid-nineteenth-century statutes. Notably, many of these statutes were enacted during a wave of nativist furor aimed at increasing the birthrate among native-born (white) women.²⁹⁴ That is the context in which these statutes were enacted. But more than that, the laws that were central to the majority’s conclusion that the Fourteenth Amendment does not protect abortion rights were, every one of them, enacted in an era in which “women could not vote, run for political office,”²⁹⁵ or participate in any way as full and equal members of the polity.²⁹⁶ Apparently oblivious to this democratic deficit, the Dobbs majority compounded it, reaching back still further to cite Sir Matthew Hale, a seventeenth-century barrister and jurist, for the proposition that “abortion of a quick child who died in the womb [is] a ‘great crime’ and a ‘great misprision.’”²⁹⁷

Put differently, the Dobbs majority’s method of analysis and interpretation bound the contemporary meaning of the Constitution to a body of law and authority in whose enactment and creation neither women nor people of color played any part,²⁹⁸ “recogniz[ing] only those rights already recognized by a ruling minority elite, who were chosen to govern through undemocratic (or at best partially democratic) means.”²⁹⁹ This is a methodological approach that reifies the conditions of democratic deficit — hardly a methodology that values democracy and true democratic engagement.³⁰⁰

More troublingly, the Dobbs decision failed to grapple with the ways in which withdrawing the abortion right would restrict the full democratic participation and equal citizenship of women.³⁰¹ There is a powerful argument that women’s full citizenship under the Fourteenth Amendment’s Equal Protection Clause, as well as the Nineteenth Amendment’s right to vote, requires control over their reproductive lives.³⁰² The majority’s refusal even to grapple seriously with those arguments is further evidence of the opinion’s crabbed and thin commitment to democracy.

* * *

In the initial aftermath of Dobbs, it appears that the public not only does not share the Dobbs majority’s substantive views about abortion — it also does not share its cramped vision of democracy. Instead, Dobbs has fueled considerable public interest in state-level direct democracy — initiatives, referenda, ballot questions and similar devices, all of which allow individual voters to directly register their preferences unmediated by other institutions or actors. As we noted earlier, in the wake of Dobbs, direct democracy initiatives have allowed voters to weigh in on the abortion issue at the state level — and in these circumstances, voters have overwhelmingly registered their preferences for reproductive freedom.³⁰³ Indeed, in the post-Dobbs era, every time voters have gone to the polls to vote directly on abortion, they have voted to protect or expand access to abortion.

The first such state was Kansas, where in August 2022 a resounding fifty-nine percent of voters rejected an amendment that would have removed abortion-rights protections from the constitution and allowed state legislators to ban or restrict the procedure.³⁰⁴

This trend only accelerated during the November 2022 election, when voters in California, Michigan, and Vermont enshrined abortion protections in their state constitutions.³⁰⁵ California voters added language to their constitution to explicitly guarantee that “the state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.”³⁰⁶ Michigan voters adopted a constitutional amendment guaranteeing abortion rights and reproductive freedom,³⁰⁷ overriding a 1931 abortion ban that might otherwise have taken effect. And in Vermont, where a 2019 law already guaranteed abortion rights,³⁰⁸ voters used the referendum process to install an additional layer of protection, enacting Article 22, the Reproductive Liberty Amendment, which broadly guarantees “personal reproductive autonomy unless justified by a compelling State interest.”³⁰⁹

To be sure, direct democracy was not simply a vehicle for expanding reproductive freedom; in various states, voters also went to the polls to register their objections to efforts to limit reproductive rights. Following Kansas’s lead, Kentucky voters rejected a constitutional amendment that would have made it harder to challenge abortion restrictions.³¹⁰ The amendment sought to direct “question[s] of access to abortion to the state’s Republican-controlled legislature and prevent[] [state] courts from . . . interpreting” the state constitution in favor of abortion rights.³¹¹ In Montana, voters rejected LR-131, a ballot initiative that, in cir­cumstances involving unsuccessful abortion procedures, declared those fetuses legal persons with rights to medical care.³¹² The proposed initiative also required doctors to provide resuscitative care for newborns with a fatal prognosis, even when no amount of medical care would save them, and despite the wishes of parents.³¹³ Widely viewed as an effort to stigmatize abortion and constitutionalize fetal personhood, the mea­sure lost by a vote of 53% to 47%.³¹⁴

Given the robust interest in direct democracy in the post-Dobbs era, it is notable that we also have seen state actors, in particular state legislatures, laboring mightily to limit access to such initiatives. For example, in Ohio, lawmakers convened a special election to raise the threshold for using ballot initiatives as a means of amending the state constitution from fifty percent to sixty percent.³¹⁵ The proposal, which was broadly understood as a means of thwarting efforts to amend Ohio’s constitution to protect abortion rights, was roundly defeated in August 2023.³¹⁶ The Arkansas legislature was more successful, tripling the number of counties from which signatures must be collected in order to qualify an initiative for the ballot — a move that was widely regarded as a hedge against efforts aimed at protecting and expanding reproductive rights in the state.³¹⁷ Likewise, in Mississippi, the state legislature has taken steps to prohibit ballot and voter initiatives in the substantive area of reproductive rights.³¹⁸ Similar measures are being pursued in North Dakota³¹⁹ and Missouri.³²⁰

These dynamics are striking and worthy of further scholarly attention. We will only note here that the Court itself has effectively underwritten these efforts to thwart direct democracy. As we discuss in the following Part, in recent years, the Court has issued a raft of decisions that distort and alter the electoral landscape, making the prospect of true democratic deliberation elusive.³²¹ To the extent that voters have been able to deploy direct-democracy initiatives to articulate their preference for reproductive freedom, it has been in spite of, not because of, the Roberts Court’s jurisprudence of democracy.

IV. The Court and Democracy: Rhetoric and Reality

Considering the Dobbs opinion from these perspectives reveals the shallow nature — indeed, the cynicism — of the Court’s paeans to democracy. Dobbs’s hollow commitment to democracy is even more pronounced when considered alongside the Court’s active interventions to distort and disrupt the functioning of the electoral process. Indeed, Dobbs arrives in the wake of a series of high court decisions that, taken together, have made our democracy decidedly less representative and less democratic.³²² These cases, and their evident hostility to voting rights, take on new salience in the context of the Dobbs Court’s insis­tence on returning the question of abortion to non-court entities for resolution. We hasten to note, as we did in the preceding Part, that our discussion here is by design limited: we do not consider democracy in its full scope and breadth, but rather we mostly limit our discussion to the electoral process.³²³ The Part that follows turns more directly to what Dobbs tells us about this Court’s role in our democracy.

This Part begins with the Court’s recent jurisprudence on various aspects of the democratic process. Although the cases involve discrete legal questions, they are remarkably similar in valence and outcome, invariably erecting obstacles to participation or invalidating efforts of state and federal lawmakers to facilitate participation and access to the franchise. After considering the Court’s cases dealing explicitly with the infrastructure of democracy, we then examine a series of cases in which the Court, or some of its members, as in Dobbs, prioritized democratic deliberation ahead of judicial intervention. As we note, in these moments where the Court prioritizes democratic deliberation, it is also avoiding a judicial settlement that would preserve and protect the interests of less politically powerful minority groups.

A. The Infrastructure of Democracy

The topic of the Court’s democracy-undermining interventions is vast and well canvassed,³²⁴ so our discussion here does not purport to be comprehensive. But we offer examples of the Court’s moves to limit the exercise of the franchise and the prospect of an inclusive democracy. Taken together, these cases have produced a landscape in which any post-Dobbs deliberation will happen under conditions of severe democratic deficit.

First, in a series of cases, the Court has hobbled the Voting Rights Act³²⁵ (VRA), a federal statute enacted in 1965 with the explicit purpose of ending racial discrimination in voting. The VRA, in the words of Justice Kagan, “marries two great ideals: democracy and racial equality. And it dedicates our country to carrying them out.”³²⁶ Despite these lofty aspirations, again and again, the Roberts Court has undermined these ideals and the landmark legislation intended to enshrine them as law. In 2013, a 5–4 Court in Shelby County v. Holder³²⁷ struck down a provision of the law that required states and localities with especially egregious histories of race discrimination in voting to obtain pre­approval from a federal court or the Department of Justice before implementing any change to their voting policies or procedures.³²⁸ In invalidating the preclearance formula, the Court gave short shrift to the Act’s reauthorization by overwhelming congressional majorities and the extensive legislative record of the continued disenfranchisement of minority voters compiled in the course of the reauthorization.³²⁹

In 2021, in Brnovich v. Democratic National Committee,³³⁰ the Court continued its assault on the VRA, narrowly interpreting Section 2 of the statute to limit the scope of cases in which litigants can successfully challenge suppressive voting policies.³³¹ As commentators have noted, the Court’s decision in Brnovich rendered meaningful enforcement of the VRA’s prohibition on discriminatory voting laws exceedingly difficult³³² — although in the 2023 case Allen v. Milligan,³³³ the Court maintained a meaningful role for Section 2 in the context of racial gerrymandering.³³⁴

In addition to limiting the reach of the VRA, the Court, in 2019’s Rucho v. Common Cause,³³⁵ announced that federal courts will not enforce any limits on partisan gerrymandering,³³⁶ a process that allows self-interested politicians to draw legislative district lines in ways that ensure a particular party’s continued hold on power. The Court’s dramatic 2019 announcement that challenges to political gerrymanders represent nonjusticiable political questions followed a series of cases over several decades in which the Court had signaled serious concerns about the constitutionality of excessive partisan gerrymanders. In 1973, the Court noted in passing that “[a] districting plan may create multimember districts perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed ‘to minimize or cancel out the voting strength of racial or political elements of the voting population.’”³³⁷ In 1986, a majority of the Court held that challenges to partisan gerrymanders were justiciable, but no majority coalesced around a methodology that courts could deploy to resolve such challenges.³³⁸ In 2004 and 2006, the Court again acknowledged the serious constitutional concerns that excessive partisan gerrymanders posed, but again it could not reach consensus about how to craft a manageable standard for policing the practice.³³⁹

But in Rucho, a 5–4 Court held that while excessive partisan gerrymanders are “incompatible with democratic principles”³⁴⁰ — leading to “results that reasonably seem unjust”³⁴¹ — federal courts are nevertheless powerless to stop them.³⁴² According to the Court, because challenges to partisan gerrymanders present “political questions,” challenges to such efforts to distort the democratic process are better left to other institutions, including state politicians and legislatures³⁴³ — the very actors who stand to benefit from these distortions.³⁴⁴

In the wake of Rucho, state legislators, apparently emboldened by the knowledge that federal courts would not enforce any limits on partisan gerrymanders, have engaged in ever more aggressive gerrymanders.³⁴⁵ Wisconsin supplies a particularly egregious recent example of the practice. In 2022, the Democratic governor was reelected by a margin of 51.2% to 47.8%³⁴⁶ statewide, and a Democrat also won the statewide race for attorney general.³⁴⁷ Yet one of the most aggressively partisan legislative maps in the country meant that Republicans held approximately 64% of seats in the state assembly and 67% of seats in the state senate.³⁴⁸

Following Rucho, some states have tried to address partisan gerrymandering, either by creating independent districting commissions to draw legislative maps,³⁴⁹ or through state court litigation in which state supreme courts are asked to determine whether partisan gerrymanders violate state constitutional guarantees.³⁵⁰ These outcomes proceed directly from the Court’s directive in Rucho, which emphasized at length that the federal courts’ inability to address partisan gerrymandering did not foreclose antigerrymandering efforts undertaken in other venues, including state redistricting commissions and state courts.³⁵¹

And yet there is every reason to worry about how these modest interventions might fare before this Court. In 2015, Chief Justice Roberts insisted in a dissent that independent redistricting commissions were unconstitutional,³⁵² and given intervening personnel changes that have occurred at the Court, there may, in the future, be sufficient votes to enshrine Chief Justice Roberts’s view into law. And, although the Court in the 2023 case Moore v. Harper³⁵³ rejected a strong form of the so-called “independent state legislature theory,”³⁵⁴ which would have prevented state courts from ever enforcing state constitutional limits on gerrymandering, the Moore opinion emphasized that federal courts could play a role in reviewing state-court interpretations of their own state constitutions.³⁵⁵ Such a view could further undermine state-level efforts to combat gerrymandering.³⁵⁶

The Court’s decisions in recent decades have also dramatically altered the financial landscape in which elections are conducted. In 2010, the Court in Citizens United v. FEC³⁵⁷ opened the floodgates to corporate spending in federal elections, allowing moneyed interests to dominate political campaigns.³⁵⁸ Its decision striking down longstanding limits on corporate spending in federal elections fundamentally transformed the campaign finance landscape.³⁵⁹ But the impact of the opinion and its logic have extended well beyond the particular corporate-spending provision at issue in the case, dramatically limiting lawmakers’ ability to enact all manner of reforms designed to combat both corruption and the appearance of corruption in campaigns for office.³⁶⁰

To the extent that federal legislation aims to ensure political participation, the Court’s decisions have eroded such protections. In 2018’s Husted v. A. Philip Randolph Institute,³⁶¹ the Court voted 5–4 to allow states to purge voters for failing to vote, notwithstanding a provision of federal law that appears to limit states’ authority to “do[] just that.”³⁶² In Husted, the Court found that Ohio could remove eligible voters from voting rolls³⁶³ where such voters had not voted for two years, had failed to return an official postcard, and had not voted for another four years after failing to submit the postcard.³⁶⁴ The Court’s decision in Husted put a significant percentage of Ohio voters³⁶⁵ — really, voters everywhere — at risk of being purged from voter rolls for sitting out a few election cycles. Husted is concerning in its own right; it is also doubly concerning because it suggests that the Court will credulously accept even unsupported claims of voter fraud or the need for deterrence in defense of ever more burdensome restrictions on the right to vote.³⁶⁶

Consider, next, the Court’s role in blessing the voter ID requirements that have gone into effect in many states, and whose ostensible predicate — preventing fraud in voting — has been squarely repudiated in the years since the Court allowed states to enforce such requirements. In a case decided in 2008, Crawford v. Marion County Election Board,³⁶⁷ the Court approved an Indiana voter identification law, and in so doing, credited state representations that the law was an effort to combat in-person voting fraud.³⁶⁸ Even in 2008, the evidence that such fraud was a genuine problem was exceedingly thin,³⁶⁹ and the intervening years have further eroded any plausible claims of significant in-person fraud.³⁷⁰

And yet, since Crawford was decided, many states have implemented and enforced voter ID requirements.³⁷¹ Some lower courts have invalidated such laws,³⁷² but they remain in force in many states.³⁷³ And, although research suggests that restrictive voter ID laws often create sufficient political mobilization to offset any significant impact on election outcomes,³⁷⁴ it is also clear that the burden of these laws falls disproportionately on low-income voters, voters of color, and the youngest and oldest voters.³⁷⁵ Such laws, then, undermine basic notions of political equality, even if they do not always impact election results.

The Court’s pandemic voting cases are also a striking display of the Court’s neglect of free and open access to the franchise. During the spring, summer, and fall of 2020, as the COVID-19 pandemic swept the country, local election administrators in some states took steps to fa­cilitate early and absentee voting to allow individuals to vote safely in the period before vaccines were widely available.³⁷⁶ In decision after decision, the Court, by the narrowest of margins, voted to prevent state officials and state and federal judges from taking steps to facilitate voting, relying largely on an underdefined principle that voting rules should not be changed close in time to elections.³⁷⁷

These interventions included the Court itself introducing election-eve changes into state voting procedures. For example, in Republican National Committee v. Democratic National Committee,³⁷⁸ the Court intervened the day before an election to stay a district court order that, responding to concerns regarding pandemic-related postal delays and potential widespread disenfranchisement, had extended Wisconsin’s absentee ballot receipt deadline.³⁷⁹ The Wisconsin stay was accompanied by a short per curiam opinion, but in other cases in the same preelection period, the Supreme Court intervened without explanation to reinstate restrictive voting rules that had been invalidated in reasoned decisions by lower federal courts. In one particularly egregious case out of Alabama, the Court overruled the appellate court, which had upheld a district court order enjoining the state’s ban of curbside voting during the pandemic.³⁸⁰ In that case, the district court reasoned that such a restriction violated the Constitution and the Americans with Disabilities Act of 1990.³⁸¹ Although the district court had enjoined the state’s prohibition in a lengthy and carefully reasoned written opinion following an eleven-day trial,³⁸² the Supreme Court stayed the district court’s injunction without an opinion explaining its reasoning, and less than two weeks before the election.³⁸³

Taken together, these cases make clear that the Court does not see its task as facilitating democratic participation. In fact, the Roberts Court has never invalidated a state or federal law on the grounds that the challenged law impermissibly undermined or interfered with the right to vote.³⁸⁴ Where it has invalidated election-related laws, it has been on the grounds that they violate the speech rights of campaign donors,³⁸⁵ or the rights of states in conducting elections³⁸⁶ — but never on the ground that such restrictions interfere with the right to vote, a right the Court once described as “preservative of all rights.”³⁸⁷

Professor Nicholas Stephanopoulos has referred to the Roberts Court’s destructive tendency in cases involving the law of democracy as an “anti-Carolene” impulse.³⁸⁸ The Carolene Products³⁸⁹ view, refracted through John Hart Ely’s Democracy and Distrust, understood the judicial role as bolstering or supporting the infrastructure of democracy, not dismantling it.³⁹⁰ Vigorous judicial review was legitimate, even where it invalidated the actions of elected officials, if it was undertaken to protect “discrete and insular minorities” from the vicissitudes of the majority, or to preserve access to democratic participation.³⁹¹ But viewing the Roberts Court’s many interventions in this sphere in tandem, it is clear that this is a Court that no longer understands itself as largely or primarily functioning to facilitate the exercise of meaningful democracy in these ways; rather, in many instances, it appears to be actively working to undermine these goals.³⁹²

B. Invoking Democracy in Other Contexts

As we showed in the preceding section, the Court has done more than perhaps any other institution to disrupt the electoral landscape, making it harder for individuals to register their preferences in majoritarian politics. It is therefore quite striking, and likely no accident, that the Court consigned the abortion question to the democratic process at this moment of all moments.

In this section, we canvass cases where members of the Court have demonstrated enthusiasm for using majoritarian processes to resolve questions that implicate the welfare of “discrete and insular minorities.” While minority groups often experience greater difficulty vindicating their interests in the political process, in these cases, such concerns do not appear to loom large in the Justices’ deliberations.

This section identifies a number of circumstances and situations, in addition to abortion, in which some of the Justices’ enthusiasm for abstract conceptions of democracy is quite pronounced, and in which their professed interest in preserving democratic deliberation is especially robust. In these contexts, members of the Court forcefully articulate an understanding of the judicial role that involves dispatching contested questions to be resolved through the mechanisms of democratic engagement and deliberation — even in circumstances where other important constitutional values are at stake.

1.  Sex Discrimination. — Decided in the same year as Roe v. Wade, the facts and disposition of Frontiero v. Richardson³⁹³ are well-known to students of constitutional law. Sharron Frontiero, a lieutenant in the United States Air Force, sought — and was denied — dependent benefits for her husband, Joseph.³⁹⁴ The government conceded that “[a]lthough such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services,” Frontiero’s claim for dependent benefits for her spouse was denied “because she failed to demonstrate that her husband was dependent on her for more than one-half of his support.”³⁹⁵ The government conceded that the differential treatment “serve[d] no purpose other than mere ‘administrative convenience’” in the processing of dependent benefits.³⁹⁶ In defense of the policy, the government asserted that, “as an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands rarely are dependent upon their wives.”³⁹⁷

A majority of the Supreme Court, however, disagreed with the government’s logic. By an 8–1 vote, the Court invalidated the sex-based preference.³⁹⁸ But although eight members of the Court were united in invalidating the policy, they could not agree on the appropriate standard of review for sex-based classifications. Writing for a plurality of four Justices, Justice Brennan maintained that “classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny.”³⁹⁹ As support for this position, Justice Brennan noted that, like “recognized suspect criteria, . . . the sex characteristic frequently bears no relation to ability to perform or contribute to society.”⁴⁰⁰ Moreover, other constitutional actors seemed to agree. Justice Brennan pointed to recent congressional actions — the enactment of Title VII of the Civil Rights Act of 1964⁴⁰¹ and the Equal Pay Act of 1963,⁴⁰² both of which prohibited sex-based discrimination, and the recent submission of the Equal Rights Amendment (ERA) to the states for ratification — as evidence that “Congress itself has concluded that classifications based upon sex are inherently invidious.”⁴⁰³ “[T]his conclusion of a coequal branch of Government is not without significance,” Justice Brennan intoned.⁴⁰⁴

Justice Powell, who authored an opinion concurring in the judgment that Chief Justice Burger and Justice Blackmun joined, also found the submission of the ERA to state legislatures for ratification to be a “compelling” development.⁴⁰⁵ However, unlike Justice Brennan, who saw Congress’s approval of the ERA as a signal of its assent to treating sex-based discrimination as on par with racial discrimination, Justice Powell understood the ERA’s progress from the federal legislature to state legislatures as a sign of ongoing democratic deliberation on the question of how to deal with sex-based discrimination. If the Court intervened, as the plurality wished, to subject sex-based classifications to strict scrutiny, it would be “acting prematurely and unnecessarily” to “pre-empt by judicial action a major political decision which is currently in process of resolution.”⁴⁰⁶ To be sure, Justice Powell allowed, “[t]here are times when [the] Court . . . cannot avoid a constitutional decision on issues which normally should be resolved by the elected representatives of the people.”⁴⁰⁷ But this was not one of those moments where the Court was obliged to weigh in. “[D]emocratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.”⁴⁰⁸

Justice Powell’s faith in the ERA and state legislatures was perhaps misplaced. Although Congress enacted the ERA and submitted it to the state legislatures for ratification, the amendment’s once-rosy prospects soon dimmed. Missouri “housewife” Phyllis Schlafly launched “STOP ERA,” a campaign that decried the loss of “the right to be a housewife”⁴⁰⁹ and the material benefits of that status, while also connecting the ERA to support for abortion, gay rights, and civil rights more generally.⁴¹⁰ In the end, Schlafly’s STOP ERA campaign was as good as its word. As the ratification deadline closed, the ERA was narrowly defeated, just three states shy of the number required for ratification, thirty-eight.⁴¹¹

As democratic deliberation proved unavailing in the effort to provide robust protection against sex-based classifications, so, too, were the courts an uneven guarantor of women’s rights. In 1976, the Court eventually settled on intermediate scrutiny as the appropriate standard of review for sex-based classifications,⁴¹² permitting the government to distinguish on the basis of sex so long as the classification was substantially related to an important government interest.⁴¹³ Under this standard, which is less rigorous than the strict scrutiny standard considered in Frontiero, the Court has upheld a range of sex-based classifications, including laws that preclude women from the draft⁴¹⁴ and make it easier for mothers to transmit citizenship to children born out of wedlock in foreign countries.⁴¹⁵

To be sure, the Court’s jurisprudence on sex discrimination did not end with Frontiero or with Justice Powell’s confident assurances that the political process would resolve the issue once and for all. Indeed, the Court, over a series of decisions that includes United States v. Virginia,⁴¹⁶ Nevada Department of Human Resources v. Hibbs,⁴¹⁷ and Sessions v. Morales-Santana,⁴¹⁸ went beyond the tentative protections for sex equality first identified in Frontiero. Given these developments, the Dobbs majority’s breezy assurances that a woman’s right to choose an abortion should be consigned to majoritarian politics threatens a return to the logic of Justice Powell’s concurrence.

2.  LGBTQ Rights. — The domain of LGBTQ civil rights has also been an arena in which the Court’s deliberations have evinced the tension between judicial protection for minorities and the prospect of preserving opportunities for democratic deliberation. To be sure, in these cases, the Court, with narrow majorities, has intervened to protect LGBTQ civil rights. But doing so has often prompted vigorous dissents that focus on judicial restraint as a means of preserving opportunities for democratic debate on fraught issues. In this regard, these dissents often mirror — and in some cases, directly invoke — critiques of Roe and the narrative of disrupted democratic deliberation that we earlier discussed.⁴¹⁹ The Court’s decisions in Romer v. Evans⁴²⁰ and Lawrence v. Texas⁴²¹ are exemplary of this impulse. In Romer, the Court invalidated Amendment 2, a Colorado voter referendum that amended the state constitution to prohibit any state recognition of and protection for “Homosexual, Lesbian or Bisexual Orientation.”⁴²² In a 6–3 decision, the Court struck down the amendment on the ground that it reflected impermissible “animus toward the class it affect[ed]” and “lack[ed] a rational relationship to legitimate state interests.”⁴²³

In a stinging dissent, Justice Scalia emphasized that the challenged amendment was an expression of the popular will — the result of ongoing statewide deliberation on the issue of gay rights.⁴²⁴ Indeed, “[b]y the time Coloradans were asked to vote on Amendment 2, . . . [t]hree Colorado cities — Aspen, Boulder, and Denver — had enacted ordinances that listed ‘sexual orientation’ as an impermissible ground for discrimination”⁴²⁵ and the governor “had signed an executive order [endorsing] . . . ‘diversity[’] . . . [and denouncing ‘]discrimination in any form,’ and directing state agency-heads to ‘ensure non-discrimination’ in hiring and promotion based on, among other things, ‘sexual orientation.’”⁴²⁶ These successes, Justice Scalia maintained, were the result of democracy working. Without judicial intervention to secure their rights, gay Coloradans had engaged in debate and persuaded their fellow citizens to confer civil rights protections through legislative and executive action.⁴²⁷

On this logic, Amendment 2 was merely further evidence of democracy at work.⁴²⁸ According to Justice Scalia, the challenged amendment reflected “lawful, democratic countermeasures” to these gay rights successes, and thus was merely an iteration of the democratic process⁴²⁹ — a process that the Court, through its invalidation of Amendment 2, disrupted.⁴³⁰ And critically, on Justice Scalia’s view, the Court’s decision was doubly disruptive. Not only had the majority foreclosed the ongoing statewide debate on the question of gay rights, but it also did so by rendering “seemingly tolerant Coloradans,”⁴³¹ who wished to express their preference for “traditional attitudes”⁴³² through the political process, akin to “racial and religious bigot[s].”⁴³³

Justice Scalia would elaborate these themes in subsequent cases concerning gay rights. Seven years later, the Court issued a 6–3 decision in Lawrence v. Texas, striking down a Texas antisodomy law on the ground that “[the] right to liberty under the Due Process Clause gives [gay individuals] the full right to engage in their conduct without intervention of the government.”⁴³⁴ In so doing, the Lawrence Court overruled an earlier precedent, Bowers v. Hardwick,⁴³⁵ on the ground that it overlooked, among other things, changing attitudes regarding homosexuality.⁴³⁶ In particular, the Lawrence majority emphasized the repeal or desuetude of criminal laws prohibiting homosexual conduct,⁴³⁷ as well as other nations’ efforts to affirm “the protected right of homosexual adults to engage in intimate, consensual conduct.”⁴³⁸

To be sure, the Lawrence majority did not frame its logic explicitly in the language of democracy and democratic deliberation. But it is worth observing that these nods to nonenforcement and shifting attitudes implicitly preempted objections that, in decriminalizing sodomy, the majority was thwarting the will of the people and their elected representatives.

But, even as the Lawrence majority sought to frame its decision as consistent with the popular will, the dissenting Justices insisted that the Court’s intervention had displaced legitimate democratic reform on the question of same-sex sodomy. In a brief dissent that echoed Justice Stewart’s dissent in 1965’s Griswold v. Connecticut,⁴³⁹ Justice Thomas pronounced the challenged Texas law a waste of “valuable law enforcement resources”⁴⁴⁰ but insisted that legislative repeal, rather than judicial declaration of a constitutional right, was the proper way to deal with this “uncommonly silly” law.⁴⁴¹

Justice Scalia, who authored the principal dissent, took issue with the majority’s overruling of Bowers.⁴⁴² He drew a direct comparison between Lawrence and Roe,⁴⁴³ which four of the Justices in the Lawrence majority had upheld in Planned Parenthood v. Casey.⁴⁴⁴ But as impor­tant to Justice Scalia as the majority’s casual dismissal of a seventeen-year-old precedent was its resolution of an issue that was better suited to democratic deliberation. The Court, Justice Scalia inveighed, “has taken sides in the culture war,” abandoning its constitutional role “as neutral observer” ensuring “that the rules of democratic engagement are observed.”⁴⁴⁵ Social acceptance of homosexuality was not as settled as the Lawrence majority claimed. Instead, Justice Scalia observed, it was a topic of considerable debate, with “[m]any Americans” harboring reservations about the prospect of gay business partners, scoutmasters, teachers, and tenants.⁴⁴⁶ Their efforts to “protect[] themselves and their families from a lifestyle that they believe to be immoral and destructive” were evidence of continued debate — a debate that the Court had again short-circuited.⁴⁴⁷

Perhaps mindful of the Romer majority’s logic, Justice Scalia insisted that his views were not born of animus against gay people but rather reflected a sincere commitment to the judicial role. As he explained, “I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.”⁴⁴⁸ And again, he reiterated that “homosexuals have achieved some success” in persuading “fellow citizens” of the rightness of their cause.⁴⁴⁹ “But,” Justice Scalia continued, “persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else.”⁴⁵⁰ The challenged Texas antisodomy law was “well within the range of traditional democratic action, and [the people’s] hand should not be stayed through the invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change.”⁴⁵¹

Justice Scalia’s objections to the decriminalization of sodomy by judicial fiat migrated easily to the Court’s consideration of a right to same-sex marriage. In United States v. Windsor, a 2013 decision invalidating section 3 of the Defense of Marriage Act,⁴⁵² Justice Scalia reprised his concerns regarding judicial settlement of a contentious social issue. But notably, he was not alone in appealing to democracy. The Windsor majority also invoked democratic deliberation and the will of the people in striking down DOMA. According to Justice Kennedy, who wrote for the majority, “After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood.”⁴⁵³ On this account, DOMA “frustrate[d] that objective” by imposing a “systemwide” federal definition of marriage.⁴⁵⁴ More troublingly, DOMA sought “to injure the very class New York [sought] to protect,”⁴⁵⁵ expressing “moral disapproval of homosexuality” and treating state-recognized same-sex unions as “second-class marriages for purposes of federal law.”⁴⁵⁶

Indifferent to the majority’s attempt to cloak itself in the mantle of democracy, Justice Scalia, in dissent, elaborated on themes honed earlier in Romer and Lawrence. In particular, Justice Scalia objected to the majority’s conclusion that DOMA evinced unconstitutional animus toward same-sex couples.⁴⁵⁷ On his account, if the question was the disruption and frustration of democratic debate, the problem did not lie with DOMA’s articulation of a federal definition of marriage, but rather, with the majority’s animus rhetoric, which “formally declar[ed] anyone opposed to same-sex marriage an enemy of human decency.”⁴⁵⁸ “Since DOMA’s passage,” Justice Scalia mused, “citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices — in other words, democracy.”⁴⁵⁹ The majority’s rhetoric, equating a preference for the traditional understanding of marriage with “‘the purpose and effect to disparage and to injure’ the ‘personhood and dignity’ of same-sex couples,”⁴⁶⁰ threatened an end to a theretofore-productive debate by casting those who objected to same-sex marriage as bigots.⁴⁶¹ In this regard, although the Windsor majority explicitly sought to vindicate state-level deliberation on same-sex marriage, Justice Scalia now insisted that the decision was effectively a “judicial distortion of our society’s debate over [same-sex] marriage” that would, as the debate over marriage equality intensified, “arm[] well every challenger to a state law restricting marriage to its traditional definition.”⁴⁶² Put differently, challenging discrimination as discrimination undermined democracy.

Two years later, in Obergefell v. Hodges, a 5–4 decision legalizing same-sex marriage, Justice Scalia, now joined by the Chief Justice and Justices Thomas and Alito, again raised the issue of democratic deliberation — and emphasized the majority’s disruption of ongoing debate at the state level over whether to expand civil marriage to include same-sex couples.⁴⁶³ Both Chief Justice Roberts and Justice Alito emphasized the linkages between democratic deliberation, enumerated rights, and constitutional protection.⁴⁶⁴ As the Chief Justice mused, because “our Constitution does not enact any one theory of marriage,” the question of whether “to expand marriage to include same-sex couples, or to retain the historic definition” rested with the people.⁴⁶⁵ Like Chief Justice Roberts, Justice Alito bemoaned federal court intervention in this ongoing debate “about whether . . . States should recognize same-sex marriage.”⁴⁶⁶ On this account, the majority’s decision that legalized same-sex marriage was not a vindication of a civil right, but an expression of judicial imperialism.

Justices Thomas and Scalia agreed — particularly on the point of the Obergefell Court’s disruption of ongoing state-level debate about same-sex marriage rights. According to Justice Thomas, “[t]he definition of marriage ha[d] been the subject of heated debate in the States,” with “35 States hav[ing] put the question to the People themselves.”⁴⁶⁷ Likewise, Justice Scalia extolled the “public debate over same-sex marriage” as “democracy at its best” — that is, “[u]ntil the courts put a stop to it.”⁴⁶⁸

Perhaps anticipating these objections, the Obergefell majority underscored its commitment to a limited judicial role — one that imagined the courts intervening in order to protect minorities against the vicissitudes of majority will. Under the Constitution, the majority allowed, “democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.”⁴⁶⁹ The people’s right to debate and determine fraught issues could not eclipse the protection of fundamental rights — particularly for those groups who could not vindicate their interests in the political process. “Thus, when the rights of persons are violated, ‘the Constitution requires redress by the courts,’ not­withstanding the more general value of democratic decisionmaking.”⁴⁷⁰ Indeed, in terms that evoked the logic of Carolene Products’s footnote four,⁴⁷¹ the majority reasoned that “[t]his is why ‘fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’”⁴⁷²

These appeals to other constitutional commitments were ignored, however, as the dissenters doubled down on the view that judicial recognition of same-sex marriage deprived the polity of the opportunity to debate and determine another contentious question. Indeed, according to Justice Thomas, the majority’s recognition of same-sex marriage rights not only deprived the people of a voice in the debate but also deprived them of the established process for “protect[ing their] liberty from arbitrary interference.”⁴⁷³ On this account, vindicating the liberty of same-sex couples required depriving the people of the opportunity to protect their liberties through the process of “representative government at the state level.”⁴⁷⁴

3.  Affirmative Action and the Political-Process Doctrine. — As the previous sections make clear, the issue of democratic deliberation often has surfaced in cases directly contesting the scope and substance of individual rights. However, it has also surfaced in cases that more generally contest the fitness of the political process for resolving disputes involving individual rights. The Court’s disposition of 2014’s Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN)⁴⁷⁵ is exemplary of this impulse.

Schuette concerned Proposal 2,⁴⁷⁶ a Michigan voter referendum enacted in the wake of Grutter v. Bollinger,⁴⁷⁷ a 2003 Supreme Court decision that upheld the limited use of race-conscious admissions policies.⁴⁷⁸ Proposal 2 amended the state constitution to prohibit public universities from using race-conscious affirmative action measures.⁴⁷⁹ The plaintiffs, most notably the Coalition to Defend Affirmative Action by Any Means Necessary (BAMN), argued that the referendum violated the political-process doctrine.⁴⁸⁰

First announced in the 1969 case Hunter v. Erickson⁴⁸¹ and elaborated in Washington v. Seattle School District No. 1,⁴⁸² the political-process doctrine provides that citizens cannot vote to establish special procedures that create hurdles for minorities who seek to advance their interests through the political process.⁴⁸³ Although the doctrine was announced and elaborated in the Hunter–Seattle line of cases, its roots lie in Carolene Products’s footnote four, which elaborated the view that more searching judicial scrutiny and intervention may be required in circumstances where state action is the product of “prejudice against discrete and insular minorities . . . , which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”⁴⁸⁴ Indeed, in invalidating a statewide voter initiative “designed to terminate the use of mandatory busing for purposes of racial integration,”⁴⁸⁵ the Court in Seattle relied explicitly on Carolene Products’s logic.⁴⁸⁶ As the Seattle Court explained, where “the State’s allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the ‘special condition’ of prejudice, the governmental action seriously ‘curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities,’”⁴⁸⁷ thereby triggering “the judiciary’s special role in safeguarding the interests of those groups that are ‘relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.’”⁴⁸⁸

As BAMN explained, Proposal 2 bore the hallmarks of the actions invalidated in Hunter and Seattle.⁴⁸⁹ The voter referendum was proposed to eliminate the use of race-conscious admissions policies — and to make the restoration of such measures subject to the political process going forward.⁴⁹⁰ If Proposal 2 passed, those seeking to restore race-conscious admissions policies would first have to persuade the state’s regents of the desirability of doing so, and then would have to secure the hundreds of thousands of signatures needed to place the issue on the ballot and fund a costly campaign to convince Michigan’s voters — all with no guarantee of success.⁴⁹¹

And critically, those seeking admissions preferences on other grounds — like geographic diversity — encountered a less arduous process: simply persuading the state regents to adopt their position. They were not required, as proponents of race-based measures were in the wake of Proposal 2, to advance their cause through multiple iterations of majoritarian politics.⁴⁹² In this regard, the challengers argued, Proposal 2 functioned in much the same way as did the policies invalidated in Hunter and Seattle.⁴⁹³ Using a voter initiative and majority rule, Proposal 2 disrupted the landscape to make it more difficult for those who would benefit from race-conscious admissions — racial minorities — to advance their interests.

A plurality of the Supreme Court, however, disagreed,⁴⁹⁴ and in so doing, significantly narrowed the scope and substance of the political-process doctrine.⁴⁹⁵ Writing for the plurality, Justice Kennedy dis­avowed a “broad reading of Seattle” and the application of strict scrutiny to “any state action with a ‘racial focus’ that makes it more difficult for certain racial minorities than for other groups” to vindicate their interests in the political process.⁴⁹⁶ Rather than determine whether the challenged state action was racially focused — an inquiry that might promote reliance on “demeaning stereotypes”⁴⁹⁷ and fuel “racial antagonisms and conflict”⁴⁹⁸ — the plurality instead held that strict scrutiny should apply only in circumstances where the action caused or risked injury on the basis of race.⁴⁹⁹ With this intent-inflected standard in mind, the plurality concluded that “no authority in the Constitution . . . or in th[e] Court’s precedents” allowed courts to override Michigan’s voters’ decision regarding race-conscious admissions.⁵⁰⁰

In a searing dissent defending the now-hobbled political-process doctrine, Justice Sotomayor recounted a long history in which majorities had distorted the political process in order to suppress minority votes, prevent minorities from holding office, and thwart desegregation efforts.⁵⁰¹ In circumstances where the majority exploited its political might to suppress the interests of minority groups, the courts were obliged to intervene.⁵⁰² The political-process doctrine, Justice Sotomayor maintained, was “a central check on majority rule”⁵⁰³ — one that ensured that majorities and minorities alike “play[ed] by the same rules”⁵⁰⁴ in the political process. In hobbling the political-process doctrine, the Schuette plurality, she argued, dismantled the long-held view “that a majority may not reconfigure the existing political process in a manner that creates a two-tiered system of political change, subjecting laws designed to protect or benefit discrete and insular minorities to a more burdensome political process than all other laws.”⁵⁰⁵ In terms that presaged the Dobbs majority’s democratic myopia, Justice Sotomayor chided the Schuette plurality for concluding that the Court’s role in ensuring political participation was limited to securing minority access to the franchise.⁵⁰⁶ Not so, she countered. In addition to ensuring access to the franchise, the Court was obliged to “vigilantly polic[e] the political process to ensure that the majority did not use other methods to prevent minority groups from partaking in that process on equal footing.”⁵⁰⁷

* * *

As the foregoing sections suggest, Dobbs is not the only instance where the Court — or at least some members of the Court — has sought to prioritize democratic deliberation and democracy at the expense of individual rights. Indeed, as Frontiero and Schuette make clear, even in those circumstances where there is a recognized commitment to individual rights, the Court may nonetheless decline to intervene to protect the interests of certain constituencies if it concludes that those interests might also be secured through democratic deliberation that is already occurring or if those interests run counter to outcomes that might be achieved in the political process. And meaningfully, many of the circumstances in which the Court has prioritized preserving opportunities for democratic deliberation are situations in which minority groups are seeking judicial recognition — or confirmation — of their civil rights.

To be sure, the cases canvassed here do not always involve a majority of the Court. In Frontiero, only Justice Powell appealed to democratic deliberation.⁵⁰⁸ In the gay rights cases, a durable minority of the Court underscored the importance of popular debate in the context of fraught social issues. But even if these dissenting voices comprised only a minority of earlier Courts, Dobbs made clear that the mathematics have shifted considerably. Voices once in dissent now likely reflect a majority — or supermajority — of the Court. With these dynamics in mind, it is worth focusing greater attention on the degree to which the pivot to democratic debate — and the prospect of resolving fraught issues through the political process — intersects with the interests of underrepresented minority groups who, historically, have struggled to vindicate their interests in majoritarian politics.⁵⁰⁹

V. Dobbs, Democracy, and Distrust

In his Yale Law Journal essay, The Wages of Crying Wolf: A Comment on Roe v. Wade, Ely famously denounced the 1973 decision as “not constitutional law” — with “almost no sense of an obligation to try to be.”⁵¹⁰ Ely would go on to author Democracy and Distrust: A Theory of Judicial Review,⁵¹¹ the 1980 book that is among the most influential texts in constitutional law.⁵¹² If Wages focused principally on the Roe Court’s substantive error in announcing a right to abortion,⁵¹³ Democracy and Distrust addressed broader themes — the defense of judicial review where it was exercised for the purpose of ensuring or enhancing democratic participation and engagement.⁵¹⁴ Responding to scholars like Professor Alexander M. Bickel and Professor Herbert Wechsler, who questioned judicial review as “countermajoritarian”⁵¹⁵ and inconsistent with principles of judicial neutrality,⁵¹⁶ Ely sought to reconcile con­stitutional adjudication with representative democracy by defending exercises of judicial review that sought to vindicate the political process and reinforce representation.⁵¹⁷

Given Ely’s interest in preserving democracy and enhancing the conditions of democratic deliberation, it is curious — or perhaps telling — that the Dobbs majority disregarded Democracy and Distrust, focusing almost entirely on Wages, Ely’s critique of Roe.⁵¹⁸ But even if it is not explicitly discussed, Ely’s political-process defense of judicial review as a means of preserving democracy and fostering democratic deliberation shadows every corner of the Dobbs majority opinion.⁵¹⁹

When he published Democracy and Distrust in 1980, Ely sought to defend the Warren Court and its decisions against charges of judicial activism and overreach.⁵²⁰ His account of political-process theory did so by framing the Warren Court’s most controversial decisions on issues of malapportionment and voting rights as efforts to bolster and advance democracy.⁵²¹ Drawing on Carolene Products’s footnote four and its articulation of the circumstances in which searching judicial review was warranted,⁵²² Ely offered a defense of the Warren Court’s decisions as efforts to enhance and preserve the political process and to ensure the rights — and thus, the political participation — of discrete and insular “minorities” who would otherwise find themselves at the mercy of the majority.⁵²³

Unlike Wages, Democracy and Distrust was not singularly focused on Roe. Nevertheless, Ely’s antipathy for the decision was as evident in the book as it was in the 1973 article. In Democracy and Distrust, Ely associated Roe with Lochner, describing both as exemplars of the Court’s “sporadic ventures into across-the-board substantive review of legislative action,”⁵²⁴ and describing such “ventures” as “probably wrong.”⁵²⁵ Dobbs, then, could certainly have located support for its result in Democracy and Distrust. So, what explains the oversight?

Perhaps the explanation can be found in a deeper analysis than Ely presented — or could perceive — of the actual interaction between reproductive freedom and democracy. In a recent article, Professors Douglas NeJaime and Reva Siegel challenge Ely’s assessment of substantive due process as democracy-diminishing,⁵²⁶ forcefully arguing that Ely’s account of political-process theory did not fully appreciate — or even acknowledge — the degree to which judicial deliberation and recognition of substantive due process rights actually responded to democratic engagement on issues of sex and sexuality.⁵²⁷ As they explain, judicial review of issues like abortion, sexual intimacy, and same-sex marriage did not always lead to recognition of rights, but it occurred in the context of growing engagement with these questions in a wide variety of fora — grassroots organizing, state court litigation, and political mobilization.⁵²⁸ As NeJaime and Siegel argue, Ely’s account of substantive due process not only fails to appreciate the democracy-enhancing potential of judicial review of these issues, but it also fails to appreciate the degree to which recognition of substantive due process rights has enhanced equality values by allowing certain constituencies to participate in the polity as equal citizens.⁵²⁹

Or perhaps the Dobbs majority’s interest in Wages, as opposed to Democracy and Distrust, simply served other rhetorical and discursive purposes in Dobbs. Just as Ely sought to insulate the Warren Court from claims of judicial imperialism by recasting its decisions as democracy-enhancing, the Dobbs majority sought to insulate its overruling of Roe and Casey from charges of judicial imperialism by recasting it as an effort to restore and preserve democracy.⁵³⁰ Certainly, there is considerable rhetorical power in this framing. The invocation of democracy allowed the majority to claim that it had not “taken sides in the culture war,” but rather merely performed its constitutional role as a “neutral observer” ensuring “that the democratic rules of engagement are observed.”⁵³¹

But it is not just that an appeal to democracy (paradoxically) confers a patina of neutrality on a majority opinion laying waste to almost fifty years’ worth of precedent. It is that it presents the Court as the hero — the Knights Templar,⁵³² if you will — vindicating the historic injustices that Roe and Casey wrought.⁵³³ In this regard, it is unsurprising that the Dobbs majority equated its work with the work of the Court in Brown v. Board of Education,⁵³⁴ which famously overruled Plessy v. Ferguson⁵³⁵ in order to correct the injustices done to racial minorities during Jim Crow segregation.⁵³⁶ Or the Court in West Virginia State Board of Education v. Barnette,⁵³⁷ which overruled Minersville School District v. Gobitis⁵³⁸ in order to correct the injustices done to religious minorities.⁵³⁹

With this in mind, the majority’s pronounced interest in Wages, as opposed to Democracy and Distrust, is perhaps more obviously legible. In Wages, Ely’s critique of Roe is not limited to the view that the decision is unmoored from constitutional text.⁵⁴⁰ In addition to lacking a constitutional foundation, Ely notes, the Court’s decision in Roe failed to grapple fully with the “compelling” interest in the protection of the fetus.⁵⁴¹ “Having an unwanted child can go a long way toward ruining a woman’s life,”⁵⁴² Ely concedes, but abortion “is too much like infanticide on the one hand, and too much like contraception on the other, to leave one comfortable with any answer; and the moral issue it poses is as fiendish as any philosopher’s hypothetical.”⁵⁴³ On this account, what makes abortion especially vexing is that there are “discrete and insular minorities” on both sides — women and fetuses.⁵⁴⁴ According to Ely, the problem with Roe is that the Court prioritized the interests of only one of these groups.

Simply put, Ely in Wages gestures toward the view that the Court may have a role to play in mediating the competing interests at stake in abortion, but that a proper understanding of its role would require protecting the fetus, which is perhaps more vulnerable and politically powerless than the women prioritized in Roe. As Ely explains at length:

Compared with men, very few women sit in our legislatures . . . . But no fetuses sit in our legislatures. . . . Compared with men, women may constitute such a “minority”; compared with the unborn, they do not. I’m not sure I’d know a discrete and insular minority if I saw one, but confronted with a multiple choice question requiring me to designate (a) women or (b) fetuses as one, I’d expect no credit for the former answer.⁵⁴⁵

Meaningfully, this account of the fetus as an underrepresented constituency in need of judicial protection can be glimpsed in Dobbs. Throughout the opinion, there are repeated references to the fetus, and acknowledgments that some individuals and institutions, including the Mississippi legislature, view the fetus as an “unborn human being.”⁵⁴⁶ Further, the majority’s effort to sequester the Court’s treatment of Roe and Casey from other substantive due process decisions rests on the distinction that, unlike Roe and Casey, those other decisions did not involve “the destruction of . . . ‘potential life.’”⁵⁴⁷ But perhaps most telling on this front is the majority’s discussion of abortion’s eugenic potential. In a footnote,⁵⁴⁸ the majority reiterated a view, husbanded by Justice Thomas,⁵⁴⁹ that those who seek “liberal access to abortion . . . have been motivated by a desire to suppress the size of the African-American population.”⁵⁵⁰

The Dobbs majority’s nod to the “abortion [as] . . . racial genocide” argument is, on some level, “gratuitous” given that the decision to overrule Roe and Casey rested on the view that “the abortion right is unmoored from constitutional text and lacks deep roots in the country’s history and traditions.”⁵⁵¹ But even if it does not serve a jurisprudential purpose in the Dobbs analysis, the footnote serves an important discursive purpose: it builds the case for viewing limits on abortion as antidiscrimination measures,⁵⁵² and more importantly, for viewing fetuses as a minority group.

Critically, then, the majority’s reliance on Wages does more than simply allow the Court to reframe its actions in more palatable terms. Obviously, the Dobbs majority’s pivot to democracy has considerable rhetorical power, allowing it to reshape the public’s understanding of its actions as democracy-enhancing, as opposed to a bald exercise of judicial power. But, more profoundly, the invocation of democracy, alongside these other discursive maneuvers, has the broader potential to reshape, however subtly, the understanding of who is in the polity and the identity of those “discrete and insular minorities” whom the Court is obliged to protect.⁵⁵³

In this way, the Dobbs majority’s allegiance to Wages — and its relative neglect of Democracy and Distrust — is revealing. By itself, Democracy and Distrust could cloak the majority in the mantle of democracy, allowing it to portray itself as the hero, even as it performed the arguably unheroic act of withdrawing a fundamental right. Wages, however, not only serves this rhetorical purpose; it goes further, gesturing toward future acts of judicial heroism that build upon the foundation that Dobbs lays. For Wages, more so than Democracy and Distrust, makes clear that the majority’s vision of democracy and democratic deliberation on abortion does not end with “return[ing] abortion” to the states,⁵⁵⁴ but with an acknowledgment of the constitutional interests of the unborn.

There are hints in the opinion — and elsewhere — that this is afoot. The majority’s decision to focus primarily on principles of democracy, rather than the illegitimacy of the doctrine of substantive due process,⁵⁵⁵ may reflect a desire to preserve the possibility of later reliance on substantive due process to justify constitutionalizing a rule that would prohibit all abortions. And the Court’s repeated references to “fetal life,” “potential life,” and “unborn human being[s]”⁵⁵⁶ may have been designed both to lay the foundations for constitutionalizing such a rule and to broadcast receptivity to such claims to litigants and lower courts. And indeed, some courts have eagerly embraced this fetus-forward posture. In Alliance for Hippocratic Medicine v. FDA,⁵⁵⁷ a challenge to the Food and Drug Administration’s 2000 approval of mifepristone, the first drug in the two-drug medication abortion protocol, Judge Kacsmaryk adopted the nomenclature of the antiabortion advocates challenging the approval, repeatedly referring to fetuses as “unborn humans,” “babies,” and “children.”⁵⁵⁸

While scholars have for many years sounded the alarm on the marshaling of anodyne laws to support “fetal endangerment” claims,⁵⁵⁹ such efforts have intensified in the post-Dobbs landscape. In Texas, Marcus Silva recently filed a wrongful death suit against three women who, he alleges, assisted his estranged wife in securing a medication abortion.⁵⁶⁰ Although the Texas Heartbeat Act allows individuals to file suit against those who assist someone in obtaining an abortion,⁵⁶¹ Silva did not avail himself of this litigation avenue. Instead, he chose to file a traditional wrongful death claim to recover “for the wrongful death of baby Silva.”⁵⁶² In addition to the wrongful death claim, Silva further alleges that two of the women “conspired with each other to murder baby Silva with abortion pills,”⁵⁶³ and that “[a]ssisting a self-managed abortion in Texas is also an act of murder.”⁵⁶⁴

Silva’s insistence on filing a tort suit — and analogizing medication abortion to “an act of murder” — is meaningful. Under Texas law, wrongful death claims may be brought against anyone who negligently or wrongfully causes the death of an individual — a category that specifically includes “an unborn child at every stage of gestation from fertilization until birth.”⁵⁶⁵ Likewise, under Texas law, murder is committed when a person “intentionally or knowingly causes the death of an individual.”⁵⁶⁶ In this regard, the resort to traditional tort and criminal law vehicles, which typically are deployed to redress offenses to the person, may be understood as an effort to normalize and embed the view that a fetus is a person⁵⁶⁷ — and indeed, a person who is vulnerable and in need of the state’s protection.

Antiabortion groups make the point explicitly. In social media and media talking points, some of the most prominent pro-life groups in the nation have indicated they are not content to let the citizens of the several states make their own decisions about abortion within their respective jurisdictions. Instead, these groups have made clear that their desired outcome is the recognition of fetal personhood.⁵⁶⁸

Taken together, these developments suggest that Dobbs’s state-by-state settlement is likely just a way station, and not the final destination. Instead, the true potential of the Dobbs majority’s vision of democracy-enhancing jurisprudence likely will be achieved when the rights of an overlooked “discrete and insular” minority — the fetus — are finally recognized, whether through majoritarian politics or judicial fiat.

Conclusion

As we have shown, Dobbs cannot be understood to rest on or further principles of democracy. Rather, a careful examination of the intellectual origins of the “democratic deliberation” argument reveals that Dobbs and its refashioning of the doctrine of stare decisis are products of a set of interconnected legal, movement, and political efforts designed to undermine and ultimately topple Roe and Casey on the grounds that democracy demands that result.

But even on its own terms, the Court’s appeal to democracy fails. Throughout, the Dobbs majority opinion presented an extraordinarily limited, even myopic, conception of democracy — one that misapprehended the processes and institutions that are constitutive of democracy, while also reflecting a distorted vision of political power and representation. The opinion compounded these distortions by refusing to grapple with the antidemocratic quality of the interpretive method it deployed to identify fundamental rights that are worthy of judicial protection. Indeed, the majority’s adherence to a history-and-tradition analysis binds constitutional interpretation to a less democratic past in which very few Americans were meaningful participants in the production of law and legal meaning.

The cynicism of the Dobbs Court’s invocation of democracy is even more pronounced when considered alongside the Court’s active interventions to distort and disrupt the functioning of the electoral process. On this account, Dobbs purported to “return” the abortion question to the people at the precise moment when the Court’s own actions have ensured that the extant system is unlikely either to produce genuine deliberation or to yield widely desired outcomes.

Focusing on these dimensions of the Dobbs majority’s discussion of democracy, however, may reveal a more profound — and jarring — truth about the opinion. Beyond its cramped myopia, the Dobbs majority’s vision of democracy and democratic engagement was one that posited the Court as a hero — vindicating democratic processes, while also vindicating the rights of particular minority groups. While its ostensible focus was the vindication of democratic values, the Dobbs majority can also be viewed as laying the ground for greater protections for the fetus as a “discrete and insular” minority. Accordingly, the Court’s “democratic deliberation” settlement is likely just a way station en route to a final destination — the abolition of legal abortion in the United States. Here, past may be prologue: just as the initial resistance to Roe sought not to leave abortion to the democratic process, but to end it entirely, Dobbs may represent an intermediate step that aims to shift political dynamics and desensitize the populace to the deprivation of access to legal abortion.

For now, legal and political fights around access to abortion will largely be waged in state legislatures, state courts, state executive-branch offices, and through the mechanisms of popular democracy. But it seems all but certain that, despite its broad endorsement of democratic deliberation, the Supreme Court has not spoken its final word on this question.

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* Frederick I. and Grace Stokes Professor of Law, New York University School of Law.

** Professor of Law, Cardozo School of Law.  Our thanks to Richard Epstein, Daniel Hemel, Leah Litman, Serena Mayeri, Erin Murphy, Doug NeJaime, Rick Pildes, Noah Rosenblum, Bertrall Ross, Micah Schwartzman, Reva Siegel, Karen Tani, Nelson Tebbe, Jeremy Waldron, and participants at workshops hosted at the AALS Annual Meeting, the University of Virginia, the Radcliffe Institute, NYU School of Law, and Duke Law School, for helpful comments and suggestions on earlier drafts.  Cardozo Law student Lauren Chamberlin, NYU Law students Ry Walker, Kelsey Brown, and Gillian Monsky, and University of Pennsylvania Carey Law students Megan Bird, Joshua Herzberg, Narintohn Luangrath, and Lainey Newman provided terrific research assistance. We also thank the editors of the Harvard Law Review for their tremendous work bringing this piece to print.