Justice Alito’s Draft Ruling on Abortion Shows the Need to Curb Minority Rule

Washington awoke to a changed political environment on Tuesday. Reproductive-rights groups were in uproar, protesters were camped outside the Supreme Court, and politicians were staking out their positions in reaction to a leaked draft majority opinion from Justice Samuel Alito, which would overturn Roe v. Wade.

President Biden, in a statement, called for elected officials and voters to defend abortion rights. “I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned,” he said. “If the Court does overturn Roe,” Biden added, “it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

Prominent Democrats went further and demanded an immediate end to the Senate filibuster, which insures that most types of legislation require sixty votes to pass, and the passage of a federal law defending a woman’s ability to obtain an abortion. “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” Senator Bernie Sanders tweeted on Monday night after Politico published Alito’s draft. “And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.” Senator Kirsten Gillibrand expressed the same sentiments, and so did a number of Democratic candidates who are engaged in high-profile election contests this year. “It’s time to end the filibuster, pass the Women’s Health Protection Act, and fight like hell to make sure all Ohio families are free to make these critical decisions without interference from politicians in Columbus or Washington,” said Congressman Tim Ryan, who is running for the U.S. Senate.

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For now, these statements are more rhetoric than action: it’s difficult to see how Senate Democrats could get the sixty votes needed to end the filibuster, or even the fifty-one votes that could, in certain circumstances, be used to get around it by exercising the so-called nuclear option. Earlier this year, when the Party sought to alter the filibuster to pass a voting-rights bill, two Democratic members—Joe Manchin and Kyrsten Sinema—voted with the Republicans to defeat the maneuver. Since Manchin describes himself as “pro-life,” there is virtually no chance that he would reverse his position now, which means the Democrats would need to pick up some Republican support. That, too, seems highly unlikely, despite statements criticizing the Alito opinion from Senators Susan Collins and Lisa Murkowski. (“It rocks my confidence in the Court right now,” Murkowski said, of the leaked draft.) But, if the political challenges the Democrats face in eliminating the filibuster remain formidable, the prospect of the Supreme Court’s adopting Alito’s draft ruling has further strengthened the argument for pursuing such a course. When Manchin voted to preserve the sixty-vote rule, he claimed that it “plays an important role in protecting our democracy from the transitory passions of the majority and respecting the input of the minority in the Senate.” But, if Alito and four other conservative Justices vote to overturn nearly fifty years of legal precedent, maintaining the filibuster will serve only to entrench minority rule in the United States.

According to a new Washington Post/ABC News poll, Americans support retaining Roe v. Wade versus overturning it by a majority of roughly two to one. This survey isn’t an outlier: public opinion about abortion rights has remained favorable for decades. What has changed is that Donald Trump, a President who won in the Electoral College but lost the popular vote by almost three million votes, was enabled, through retirements and the happenstance of the mortality tables, to appoint three Justices who have fundamentally altered the balance of the Court and made it an agent of conservative counter-revolution. If they succeed in overturning Roe v. Wade, there is ample reason to believe that they will go on to reverse other liberal precedents, including federal affirmative-action rulings, same-sex marriage, and state gun-control laws. And, as long as the filibuster remains on the books, and the country remains deeply divided, the Senate will serve as a bulwark to reinforce the Court’s reactionary rulings.

The counter-argument is that eliminating the filibuster would lead to chaos and instability, as successive Congresses reversed the works of the previous ones. This is a canard. Other major democracies get along fine without this type of restriction, which, in the modern era, largely serves to prevent Presidents from enacting the platforms they are elected upon. When procedural rules are routinely used to block policies that the voters favor, it is not surprising that many people lose faith in the system.

Also, it is not as if the U.S. system doesn’t have other checks on the majority. The Electoral College and the Senate were both designed, at least in part, to avoid plebiscitary rule. In the current environment, the real danger is too little majority rule rather than too much of it. With a deadlocked Congress, an electoral system that favors states with small populations, a major political party that is still dominated by a politician who tried to stage a coup, and an unrepresentative high court that is now packed with judges determined to roll back landmark American jurisprudence, the danger of permanent minority rule is looming ever larger. Eliminating the filibuster isn’t a cure-all, but at a moment like this something should be done. It’s time for President Biden to say as much.