After the confirmation of Judge Amy Coney Barrett in October 2020, a conservative majority was cemented into the Supreme Court, causing the public to express grave concern about the state of their reproductive rights. After an ill-prepared and unsatisfactory confirmation hearing, many saw Justice Barrett’s seat on the Supreme Court as indicative of fatal flaws within the judicial system, with some scholars and activists even calling for the abolishment of the Court altogether. Many Americans began to find fault with the fact that the judicial branch forces Americans to entrust nine individuals, who have always been disproportionately white, male and far removed from the public, to protect minority voices from tyranny of the majority. When it comes to the debate over the Supreme Court, however, few have considered the advantages of opening up the floor to the general public. Especially in the case of Roe v. Wade, which a majority of the Court now wishes to overturn, a decision that would influence people’s lives, bodies and futures, should be dealt with democratically, meaning that everyone’s input should be heard. By considering alternative methods of judicial review, there are still ways the United States can change the narrative, not just around reproductive rights, but concerning the U.S.’ democracy and judicial system as a whole. 

Giving the power to the states would not come without consequence. There are inevitable problems that come with allowing people who are not legal experts to vote on a topic about which they are likely undereducated. Should Roe v. Wade be overturned, not all states would change their abortion legislation. Southern and Midwestern states would outlaw the termination of unwanted pregnancies, not making abortion illegal, but simply that much harder to obtain for minors, people with low incomes, people without transportation, among others (Bui). States that tend to vote against abortion typically have a much higher proportion of elected officials who will never need one. This speaks to the biggest challenge produced by giving power back to the states: tyranny of the majority.  It would be all too easy for conservative men, who will never face firsthand the anxiety of an unwanted pregnancy or the denial of an abortion, to vote against a woman’s right to choose. 

Those against the idea of state governments determining abortion law have argued that the Supreme Court is meant to act as a remedy to this problem. In an interview with Judge Jed Rakoff on the podcast Crime and Punishment, he mentions the fact that “policy is mostly set by the legislature and by the executive, but there are particular areas where judges are looked to as the protectors. And I’m talking about free speech, the rights of minorities, the rights of unpopular people. Because the executive and the legislature do the will of the majority” (Bharara). However, it is important to remember that the justices on the Supreme Court in 1973, when Roe v. Wade took place, were all men, only one of whom was not white. The women of America were not given reproductive rights because of better representation, but because the right case went to the right court at the right time. Although the executive and legislative branches are more obligated to act on the wishes of the majority, the demographic of those serving on the Supreme Court were also guilty of acting on the wishes of the majority. They were the majority. Even today, six of the nine Supreme Court seats are filled by men, five of whom are white, disproving the point that these judges are somehow more representative of those within the minority than state legislatures would be. Some have argued, as Judge Rakoff did on Crime and Punishment, that “when a judge puts on the robe, you are no longer your individual with your individual idiosyncrasies. You are representative of the rule of law,” but the legitimacy of the rule of law and those who define it are the people, not the select few who have been appointed by one individual to a lifetime seat (Bharara). It is true that “where male-dominated legislatures pass laws affecting only women, at a minimum, courts must ensure that these kinds of laws do not reflect conscious or unconscious sex discrimination,” but now that there are six conversative justices on the Supreme Court, this seems like an expectation that the highest court in the land seem less and less likely to respect (Dellinger, 105). Those who govern cannot act without the consent of the governed, and by giving fundamental issues such as Roe v. Wade to the Supreme Court, we overstep that requirement of consent. 

Both the states and the Supreme Court have the ability to engage in tyranny of the majority, or as discussed previously, subscribing to a Juridic Constitution. However, unlike the Court, state legislators have the opportunity to include everyday Americans in the decision-making process. On the state-level, it is easier and more feasible to institute programs that foster the conversations that would unify the people.

Such a program is described by Archon Fung in his explanation of mini-publics, which he defines as “deliberately constructed public spheres [that] can advance the central concerns of contending views by, for example, emphasizing political education, social solidarity, political critique, or popular control” (Fung, 339). The objective of the mini-public is to choose participants who reflect the general population’s demographics and create a platform for different views and perspectives that allow people to gain confidence in their understanding of a topic and come to their own conclusions about it. Not only do mini-publics keep both public officials and citizens informed and knowledgeable about various political issues, but they encourage participation in local politics, promote good citizenship skills, elicit accountability from policymakers, and allow communities as a whole to come to an agreement through ongoing discussion.  In Oregon, the use of mini-publics succeeded in doing exactly that. After holding 46 community meetings throughout the state with thousands of Oregon residents in attendance, activists, policymakers and everyday citizens worked together to expand Medicare coverage in a financially feasible way. Because Oregon decided to install mini-publics, Oregon Medicaid now extends to Americans below the poverty line (Fung, 357). For issues as important as reproductive rights, a much longer and more inclusive conversation is necessary. As was proven through the use of mini-publics, “decisions resulting from deliberation may be more fair and legitimate because they are the result of reason, rather than arbitrary advantages. They may be wiser because they allow a broad range of perspectives and information to be pooled together. Discussion may help individual participants to clarify their own views” (Fung, 343). This is extremely important in fundamental law as it allows the country to come to more informed conclusions that consider the feelings of those directly affected. 

Another opportunity that arises should the power be returned to the states is the ability to transform the relationship between the public and the Supreme Court moving forward. In an essay by Jenna Bednar, she discusses Barry Friedman’s dialogic theory of judicial review, in which he proposes that by tasking ourselves with a responsibility to keep the Court in check, rather than it checking us, we create a relationship in which “the Court and the public not only speak to one another, they listen to each other, with the Court deferring to the public when they disagree” (Bednar, 1179). The Supreme Court’s ability to have the final say on legislation such as Roe is dependent on its legitimacy, a quality given to the Court by the people. If they make a decision the people find unjust, they have the power to take that legitimacy away. Once the public is informed of this power, “the Court inhabits a world where its actions shape the law, but the Court is also concerned with a supplemental effect: its actions have consequences for the welfare of the Court’s members” (Bednar, 1180). If the public expresses a strong distaste for the Supreme Court’s decision and challenges its legitimacy, the Court will understand what the people will and will not tolerate from the judicial branch and will rule on such topics accordingly. For example, the public has tended to vocalize their opinions the most regarding cases that affect the people directly, such as abortion, eminent domain and sex/race discrimination. However, in cases that are less familiar to them, they tend to stay silent. The Supreme Court typically operates in favor of public opinion, knowing that if they do not, the backlash will be great. Both Friedman and Bednar posit that in order “for the Court to be restrained, there must be some boundary that, when crossed, triggers a punishing response. A basic requirement for this model is knowledge of the boundary’s location: that is, the length of the leash, indicating the breadth of tolerance before the Court is tugged back in line” (Bednar, 1184). For this to be successful, all citizens must be informed of Supreme Court decisions, voice their thought processes publicly and question the Court’s legitimacy should they act inconsistently. If Roe were to be overturned, the deliberation that would ensue amongst the states would provide space to critique the Court and deter them from making such decisions in the future. 

Both the mini-public and the dialogic theory of judicial review are procedures that can be put in place by local governments and eventually spread out to operate state-wide, meaning that if we, the people, push for them, they can absolutely be made a reality. If the Supreme Court makes the mistake of overturning Roe, the public will be given another chance to change the national narrative, and should we decide to turn to the inclusive methodology of mini-publics and/or dialogic judicial review, this will be achieved. 

Works Cited:

Bednar, Jenna. The Dialogic Theory of Judicial Review. The George Washington Law Review. 2010. http://www-personal.umich.edu/~jbednar/Pubs/Dialogic.GWLR.2010.pdf 

Bharara, Preet. Stayed Tuned with Preet. “Crime and Punishment (with Judge Jed Rakoff).” WNYC Studios. November 2017.

Bui, Quoctrung, Miller, Claire Cane, & Sanger-Katz, Margot. “What Happens if Roe v. Wade Is Overturned?” The New York Times. October 15 2020 https://www.nytimes.com/interactive/2020/10/15/upshot/what-happens-if-roe-is-overturned.html 

Dellinger, Walter and Gene B. Sperling. “Abortion and the Supreme Court: The Retreat from Roe v. Wade.” The University of Pennsylvania Law Review. 1989. 

Fung, Archon. “Survey Article: Recipes for Public Spheres: Eight Institutional Design Choices and Their Consequences.” The Journal of Political Philosophy, Vol 11. 2003.