No, the Supreme Court isn’t ‘undemocratic’

The shockwaves of this past Supreme Court term continue to shake the political left. Roe v. Wade is gone. Gun rights were further secured. Religious liberty was vindicated.

The reaction among progressives (beyond anger) has been to attack the Court as illegitimate. Of course, they do not mean the Court is inherently unconstitutional. Article III makes that plain to even the most evolving of living constitutionalists. Instead, they say that the Court has committed two sins this term: the justices have engaged in judicial activism and they’ve acted undemocratically. These accusations seem based in frustration more than perceptive analysis.

First, let’s tackle the claim that the Court engaged in judicial activism. The essence of judicial activism is to “legislate from the bench.” Judges must not make law. Their role in the constitutional system restrains them to exercise no will of their own regarding policy. Instead, they use their judgment to apply the will of the people. They do so by interpreting and applying the law — including the Constitution — to resolve legal disputes.

In Dobbs, the Court undid a piece of judicial lawmaking by overturning Roe v. Wade and Planned Parenthood v. Casey. Through those precedents, past courts had engaged in one of the greatest acts of judicial policymaking in American history. They had wrested political power from the people, especially through the states, and imposed their own will on this sensitive and fraught issue. By ending those precedents, the Court relinquished power to a degree it had not in generations.

The justices must follow the Constitution above the decisions of past courts. The people rule, not judges. And the people do so through their laws, including the Constitution. While there should be respect for some precedents, the Court showed how Roe and Casey had no constitutional basis.

Justice Alito’s opinion in Dobbs went through a painstaking historical examination of how those who passed the Fourteenth Amendment viewed abortion. He showed how no protections existed for the practice at the time or for most of American history. Quite the opposite, the same legislators passed ever-more restrictive regulations banning abortion across the country. The Court overturning Roe and Casey thus undid great wrongs that the institution had committed. They did not play the activist; they rejected the role after nearly fifty years of doing otherwise.

In other cases, the Court did restrain state governments from taking certain actions. Carson v. Makin ruled that Maine could not exclude religious schools from a state program that paid tuition for students to attend private schools where no secondary school existed. New York Rifle and Pistol v. Bruen struck down a restrictive gun regulation that made it nearly impossible for a person to carry a gun outside the home for self-defense. You might here accuse the Court of thwarting popular rule. But the Court didn’t engage in activism in either of these cases. The Constitution is itself a law (in fact, it’s the highest law of the land). The Court must always enforce that law, even if it means doing so over other laws passed by states or Congress.

The First Amendment demands that persons not suffer for thinking and acting on their religious beliefs. Discrimination of benefits on the basis of such actions and beliefs falls well within that constitutional prohibition. Likewise, the Second Amendment gives constitutional protection to gun ownership for self-defense, another point the Court went through thorough textual and historical analysis to show. Far from implementing their preferred policies, the Court repeatedly applied the will of the people, as encoded in their Constitution, to protect their rights.

Second, there’s the claim that the Court acted in an undemocratic fashion.

A law professor from Marquette, for instance, recently called the Court’s decisions “extremely undemocratic.” Such accusers point to polling that suggests that abortion access and certain gun regulations are popular. They bemoan the justices’ blocking bureaucrats from fighting climate change. Again, this criticism falls flat.

Overturning Roe returned the battle over abortion to the political process. If abortion is so popular, it should have no trouble winning at the polls. In fact, popularly passed laws would strengthen abortion protections more than any judicial oversight. The problem for the pro-choice movement is that the pro-life position seems to have great political strength as well. Both sides now will have to engage in a real, authentically democratic debate. Truly, how could the Court have acted in a more democratic fashion than to leave this discussion to the people themselves?

In a similar fashion, the Court returned power to Congress in West Virginia v. EPA. In doing so, it limited how Environmental Protection Agency bureaucrats could act to battle climate change. Congress, again, makes the laws for the nation as the people’s representatives. Bureaucrats in agencies should only fulfill the will expressed by the legislative branch. Again, if fighting climate change is so popular, policies should have no trouble winning supporters.

Upon calmer inquiry, the Court has done the opposite of what they stand accused of. The justices undid major acts of judicial lawmaking. They enforced well-grounded constitutional protections, showing their basis in text and history with great skill. They shored up popular rule. Rather than critiquing the Court for its alleged ills, all Americans should praise this last term for what it was: a rejection of activism and embrace of self-government.

Adam Carrington is an associate professor of politics at Hillsdale College