SCOTUS Says Human Rights Should Be Left to the Same ‘Democratic Process’ it Undermined
Three years ago this week, the Supreme Court ended the federal right to abortion in Dobbs v. Jackson Women’s Health Organization. In their ruling, the justices in the majority suggested that women who were upset about losing their bodily autonomy could direct their anger toward engagement in the democratic process.
Last week, the Court took inspiration from Dobbs in a new ruling that allowed states to ban transgender health care for minors. In his opinion, Chief Justice John Roberts wrote that he and his colleagues “leave questions regarding its policy to the people, their elected representatives, and the democratic process.”
But it’s long been seen as the role of courts to protect the rights of minority groups who lack the numbers to win at the ballot box. What the justices left unsaid in both cases is that, thanks in part to the court’s own rulings on voting rights and campaign finance, the democratic process in many states has been fundamentally undermined. In too many places, lawmakers are entrenched in power, allowing them to defy popular positions with impunity.
In that sense, Justice Roberts’ determination that he will leave policy involving queer people to the “democratic process” is nothing more than a mirage.
In too many places, lawmakers are entrenched in power, allowing them to defy popular positions with impunity.
In United States v. Skrmetti, the Court upheld a Tennessee ban on puberty blockers and hormone therapy for transgender youth, after the Biden administration sued the state over the law. During December’s oral arguments, Tennessee Solicitor General Matthew Rice was pressed about whether the state’s logic would allow it to ban gender-affirming care for adults. Rice said the issue should be left to voters.
“Democracy is the best check on potentially misguided laws,” he said.
Justice Sonia Sotomayor shot back, “When you’re 1 percent of the population or less, [it’s] very hard to see how the democratic process is going to protect you. Blacks were a much larger part of the population and it didn’t protect them. It didn’t protect women for whole centuries.”
Sotomayor hammered this point in her dissent, writing that the trans community lacks “the political power to vindicate its interests before the very legislatures and executive agents actively singling them out for discriminatory treatment.” She added mournfully that the conservative justices have long abandoned a framework where the courts safeguard the rights of minorities who “often face systemic barriers to vindicating their interests through the political process.”
Even more worryingly, the democratic process often fails to effectively represent the public will.
In 2010’s Citizens United v. FEC, the Court allowed corporations and super PACs to spend unlimited amounts of money in elections — making lawmakers more accountable to donors than their actual constituents. The court also has weakened protections against racial discrimination in voting — most famously in Shelby County v. Holder in 2013.
In its early years, the Roberts Court attacked civil rights and gave more power to corporations, but since 2022, the Court has been busy attacking human rights. This had to be the order of operations: The incremental kneecapping of democracy was necessary to consolidate conservative power, pack the Courts, and enact and uphold unpopular laws.
While Trump lost the 2016 popular vote, he was able to appoint three justices to the Supreme Court in his first term, as well as hundreds of lower Court judges. Those jurists now hear cases about laws passed by gerrymandered state legislatures — including bans on abortion and gender-affirming care. (The Dobbs case was a challenge to Mississippi’s 15-week abortion ban, passed in 2018.)
In Skrmetti, Roberts wrote that the Court’s role was not to weigh in on “scientific and policy debates” surrounding gender-affirming care for minors, but rather to decide if certain laws violate the Equal Protection Clause of the Fourteenth Amendment. While the ban blatantly discriminates based on sex, the conservative justices came to the incoherent conclusion that it does not. As a result of this judgment, the Roberts Court punts questions regarding medical care to states and the vaunted “democratic process.”
The conservative refrain that lawmakers should have a say in human rights echoes the reasoning in the Dobbs decision that overturned Roe v. Wade, where Justice Samuel Alito wrote: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
In Dobbs, the Court blessed a vile scheme where people have different rights depending on which state they live in and, three years on, we’re seeing what a disaster that is. Not only are people being forced to travel for care, but lawmakers in states that allow direct democracy are doing everything they can to thwart the voice of the people by making ballot measures harder to pass.
They’re also trying to override the will of the voters. Just last week, Ohio Republicans said they will introduce a total abortion ban that would overturn the ballot measure voters passed in 2023. The proposal, called the “Ohio Prenatal Equal Protection Act,” would also allow women who have abortions to be charged with homicide, end IVF as we know it, and ban certain forms of birth control like IUDs. Plus, earlier this month, the Southern Baptists voted to work toward overturning the court’s 2015 marriage equality ruling, Obergefell v. Hodges. Such a move could send same-sex marriage back to the states, just like abortion.
The Court’s long game was no accident. Through decisions like Citizens United v. FEC and Shelby v. Holder, they took care and time to erode the power of the people at the ballot box. Now, as they hand human rights to the states, they know that the very people they’re putting at risk have their voices suppressed.
We shouldn’t even be in a place where people get an up or down vote on their neighbors’ humanity, but this is the reality in the United States today.
Susan Rinkunas is an independent journalist covering abortion, reproductive health, and politics. She is a cofounder of Autonomy News, and a contributing writer at Jezebel. Her reporting has appeared in The Guardian, Slate, The New Republic, The Nation and more.
As a Democracy Docket contributor, Susan covers the intersection of abortion, bodily autonomy and democracy.