It is somewhat of an understatement to say that the recent Dobbs decision of the US Supreme Court sparked outrage in the liberal public. The substance of the decision – repealing the constitutional right to abortion that was originally recognised in Roe v. Wade almost 50 years ago – is enough to cause furor. But the decision further reignited an old debate about who gets to decide which rights people can claim against the political authority or their fellow citizens. Can a group of unelected, unaccountable, (supposed) legal experts, have the final word over matters so consequential for people’s ordinary life such as the legality of abortion? Or should matters of such capital relevance be left exclusively to the will of the people and their representatives?[1]
Undoubtedly, there is something in the optics of Dobbs that looks peculiarly bad in terms of representation. Of the six judges that assented to the decision, only one is a woman and all five are practicing Christians, of which one Episcopalian (but raised in the arch-Catholic tradition of natural law, Gorsuch) and all the other Catholic.[2] But, on the other hand, no woman participated in the original decision that introduced the right to abortion in the US.
It is also fair to observe that the relationship between the liberal public and the US Supreme Court has shifted considerably depending on the substance of each decision. Not only there were massive celebrations outside the Court when Obergefell codified the right of sex-same couples to get married no more than seven years ago but a court with a similar composition was praised two years ago for the Bostock v. Clayton decision which established that trans people are protected from workplace discrimination. Hence, we have good reasons to question the Left’s principled opposition to Supreme Court rulings concerning the scope and content of constitutional rights. But we can leave politics aside for a moment (it will come back later) and focus instead on the main question: is it acceptable that, in a constitutional democracy, the most fundamental rights of citizens are left to depend on the decisions of unelected judges?
The complicated case against unelected judges determining rights
A resounding no to this question has been offered in numerous contributions by the leading legal philosopher Jeremy Waldron and many have seen in the backlash against Dobbs a vindication of Waldron’s position. So, let’s briefly revise Waldron’s argument to see if it shows it is indeed unwise and undemocratic to leave matters of basic citizens’ rights to judges.[3]
Like all good philosophical arguments, Waldron’s is based on assumptions. Two of them strike me as unproblematic: they concern “persistent, substantial, and good faith disagreement about rights” within the polity and a functioning judiciary system. The other two are at least controversial. Waldron speaks of “democratic institutions in reasonably good order, including a representative legislature elected on the basis of universal adult suffrage” and a “a commitment on the part of most members of the society and most of its officials to the idea of individual and minority rights.”[4] When these conditions are in place, Waldron argues, it is better to leave the matter of rights to legislatures as this will maintain democratic legitimacy. Of course, legislative majorities may end up enforcing rights that ought not to be enforced or fail to recognize some that ought to receive proper recognition. But the same applies to courts, as Dobbs, arguably, illustrates.
But what if the democratic order is less than perfect? What if, for instance, the composition of one of two chambers is such that citizens of smaller, rural areas – who also happen to harbor the most conservative ideas – are over-represented whereas citizens of bigger, urbanized, and generally more progressive areas are under-represented? That is the case with the US Senate. It seems we already have a problem, then, with applying Waldron’s argument to the US, because of its lack of a fully representative legislature.
There is, moreover, the issue of the proper franchise. Imagine we had to decide the issue of abortion through the most democratic of means (at least on paper), the referendum. A popular principle in democratic theory is holds that all the individuals affected by an authoritative decision should have a say on the matter (the all affected principle). Does it imply that the people who are not affected by a decision should not be allowed to vote? If we apply this to the abortion controversy, we run into two complications. The first is that identifying who can be affected by abortion legislation is becoming increasingly controversial. All women? Maybe in a symbolic sense yes, all women are affected by abortion legislation. But, in more practical terms, only a segment of the people the law identifies as women can get pregnant. And, as the “woke” Twitter activist would surely remind us at this point, some trans men can get pregnant too and so people who identify as non-binary. But another (in my humble view, more crucial) worry is this: if you think that only women (or maybe only those who can get pregnant) should have a vote on a referendum about abortion, then you are implying that fetuses and embryos are not affected. Presumably, this is because their life does not have the intrinsic value women’s autonomy has, which is precisely what the pro-life position denies. Forget for a moment all the infinite hypocrisies and double standards of the pro-life movement (there is nothing much pro-life about campaigning for gun rights or against Medicare). If you want to take the pro-life position even minimally seriously, you have to accept that people who can get pregnant are not the only individuals who may be affected by abortion legislation.
Regarding the other controversial assumption, that there is a broad “commitment” to the idea of individual and minority rights sounds to me as the classic example of a statement that is either an absurdity or a triviality. If it is taken to mean that most people in contemporary, liberal democracies care about rights and recognize their importance in general, it may be true but I am not sure how it demonstrates that democratically elected legislature or the democratic public are more likely to make the best decisions regarding rights. I care deeply about my own health but I would not trust myself in choosing the best cure if I get ill. If, on the other hand, it is meant to imply that people in a liberal democracy tend to see even the rights they oppose as worthy of consideration, it strikes me as patently false. I, for instance, give no concern altogether to the right to bear arms; I am just happy to have always lived in countries where it does not exist. Similarly, it seems to me, supporters of the pro-life movement give no consideration altogether to the right of women to autonomy and self-determination; if they did, they would recognize the cruelty of forcing a woman to carry on a pregnancy in all except the most extreme, life-threatening circumstances.
So, what happens when a polity, however committed it is to the generic idea of the relevance of individual rights, is deeply divided about which rights ought to exist? What is most likely to happen, if the country is a democratic one, is that the rights most congenial to the majority will find adequate protection whereas the ones the majority does not care enough about (in the sense that they do not vote for representatives who are going to support them in parliament) will be left out of the political agenda. A good example is my own country. After being one of the most progressive Catholic countries from the 60’s till the early 80’s, which led to innovative legislation on divorce, abortion, mental health, and the right to change legal sex, the majority in Italy became gradually more conservative from the 90’s onwards. The result? We are now the only Western European country with no same-sex marriage and no progress has been made regarding other conservative-bashing topics such as euthanasia or drug liberalization. The Italian Constitutional Court, which can only strike down laws approved by Parliament but cannot create new de facto laws on the basis of constitutional interpretation, has repeatedly invited Parliament to approve laws that may protect the rights of same-sex parents or of terminal patients who want to end their life in peace, but to no avail.
Can there be a middle ground between the Judges and the People?
What is, then, the moral of the story? It is, I am afraid, a complicated one. Having a constitutionally entrenched Bill of Rights, protected by a constitutional court, is probably a good thing; I cannot think of any argument against it. But Bills of Rights cannot contain all the rights that citizens will need at any point in the course of a country’s history and will therefore contain no more than somewhat vague provisions. Allowing a constitutional court to derive consequential decisions on people’s concrete legal entitlement from those vague provisions has significant risks, as we have recently seen; judges can decide that their prior interpretation was incorrect and that, because of that, some rights previously recognized no longer exist.
On the other hand, letting the people and their representatives decide on minorities’ rights means essentially waiting until a majority agrees they care enough about an issue that may not affect them at all, which is frustrating if you are a member of the minority for which that issue is, by contrast, of paramount importance. But, unlike Ronald Dworkin, the great advocate of rights’ insulation from democratic practice,[5] I do not see this as a good reason to leave rights outside democracy and assign them to courts. Admittedly, the US Supreme Court is a particularly bad example of a constitutional court due to its increased politicization but all courts deciding over citizens’ basic rights risk making decisions that may be seen by the public as merely political legislation in disguise.
Hence, to conclude with something that will sound less than grandiose, what we need is probably a mixed solution. Courts or other unelected, de-politicized bodies may have a crucial role in reminding parliaments of the need to find adequate protection for the interests of minorities but the last word when it comes to legal entitlements can only be left to the sole authority that, in a democratic regime, has legislative power: the people and its representative. Which means that, as frustrating as it might feel, minorities will need to wait a bit until their legitimate instances are welcomed. But that is just ordinary democratic politics. And, as long as the democratic battle is fair (which is certainly not in a country where the citizens of Alaska elect the same senators as those of California), there are good chances that the arc of the moral universe, at some point, will bend towards justice.
[1] Ironically, if you do think that parliaments and not courts should have the final word on rights not explicitly mentioned in the Constitution, you agree with the current Court when it affirms, regarding the Casey decision which upheld Roe, that it “short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe” (p. 5). [2] The Court itself might not have a problem with that as it holds that “[o]ur decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office” (p. 65). [3] More specifically, Waldron’s argument (which I am here summarizing from "The Core of the Case against Judicial Review," The Yale Law Journal, 115.6 (2006), 1346–1406) concerns the legitimacy of “judicial review,” i.e. the power of supreme or constitutional courts to strike down democratically enacted legislation. But the two issues are strictly related; if we want parliaments to have supreme, unchecked legislative sovereignty, we might also want them to have the last word on rights. [4] P. 1360. [5] See "Is There a Right to Pornography?," Oxford Journal of Legal Studies, 1.2 (1981), 177–212.