Setting aside the banal fact that the judicial system is a part of our democratic process, there is a clear, straightforward and well-known way to overturn Roe v. Wade– pass a constitutional amendment criminalizing abortion. ~Freddie deBoer

It’s a curious thing about such “banal facts”–sometimes they aren’t facts at all, but rather baseless assertions. The judiciary is part of our constitutional, formally republican system, but it is the one branch of government that is as far removed from “the democratic process” as can be. All of the things that we are supposed to prize about the judiciary–its independence, its (theoretical) adherence to the rule of law and its (theoretical) safeguarding of constitutional protections against the other branches–are not only undemocratic, but they are sometimes explicitly anti-democratic. It is set up this way in order to prevent ochlocracy and passions of the moment from destroying fundamental constitutional protections in fits of panic or anger. What Roe does, as Freddie knows full well, is to ground abortion in one of these fundamental protections, which therefore cannot be infringed upon by statute or referendum. To say that Roe doesn’t take the question out of the democratic process would be to say that the right that the Court discerned, or rather imagined, in 1973 isn’t considered legally to be the same kind of constitutionally protected right as any of the others. However, to admit that a constitutional amendment is required to make abortion illegal is to acknowledge that it is the same, and it is to grant that the right guaranteed by Roe is outside of anything like the normal democratic process as constitutional rights would have to be. If constitutional rights are still potentially revocable as part of the constitutional process, that isn’t what anyone means when he says that something is or isn’t subject to the democratic process.

Judges are not wholly unaccountable to the people, but in practice federal judges are never impeached for their rulings. This would be seen as political interference and a violation of the judiciary’s independence. In many cases, this arrangement is probably better than many alternatives, but like any ultimately unaccountable institution the Court can abuse and has abused its power, and it can do so in no small part because of the power it already arrogated to itself. Even to the extent that new appointments to the Court indirectly reflect the views of the majority at a given moment, the judges in question are expected not to serve as reliable representatives of their faction or ideological clique, but are instead supposed to respect precedent. This is particularly true of conservative judges, and it is especially true when it comes to their views on Roe. Even in those limited, roundabout ways that elections might influence the composition of the Court and affect how the Court rules on cases related to abortion, elections have their smallest effect on this specific question. Freddie knows all of this, so who is he trying to kid?

The amendment process is a somewhat indirectly democratic means to make changes to that system. This makes the amendment process a slow, drawn-out, but nonetheless democratic remedy to perceived flaws in the system. The amendment process is extremely slow and arduous because there was once a quaint idea that dramatic changes in the power and scope of government could and should only be achieved through this process. Likewise, there was an assumption that there needed to be numerous obstacles to amending the fundamental law to make it more difficult for majoritarian tyrannies to strip people of their constitutional protections. Once the Court began discovering rights, or, if we want to be less pejorative, extending the protections of existing rights in new ways, what had once been within the power of state legislatures and electorates to regulate as they saw fit was placed behind a series of huge obstacles that cannot be overcome without the building up of super-majorities throughout the entire country in favor of a certain position. That would all be well enough if the right in question were not so constitutionally dubious and morally outrageous, since this process is supposed to be extremely difficult and it is supposed to require the support of most of the people, but the so-called right we’re talking about is both of these things.

Each time someone proposes a federalist compromise on this question to return the issue to the individual states, defenders of the status quo insist, as one might expect they would, that the guarantees of constitutional rights cannot be left up to the states and the people, because they understand that returning the question to the political sphere and the democratic process would lead to at least some restrictions that they argue are violations of fundamental protections. For the most part, it seems to me that supporters of Roe are usually quite proud of the fact that the “right to choose” is no longer subject to the democratic process, and they are frequently alarmed by anything that threatens to return it to its former status. One cannot argue that there is both a constitutional right at stake and also argue that the entire issue remains subject to the democratic process.