The Supreme Court’s abortion, EPA rulings could open the door to more democracy | Bruce Ledewitz

The cases that are bothering people require a democratic political response. They do not demand a surrender

July 19, 2022 6:30 am

It’s been a year since an early draft of the Dobbs decision was leaked, a precursor to the U.S. Supreme Court decision in June that overturned the federal right to abortion. (Getty Images)

Americans are being told that recent decisions by the United States Supreme Court represent a threat to democracy. But actually, these decisions—Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade; West Virginia v. EPA limiting administrative authority to regulate carbon emissions; N.Y. State Rifle & Pistol Assoc. v. Bruen constitutionalizing concealed carry, and Kennedy v. Bremerton School Dist. and Carson v. Makin expanding religious expression and access to government funding—might usher in a new age of mass democratic expression in America. 

That call for a more democratic future is obvious with regard to abortion and climate change. The court was essentially inviting state legislatures, in the case of abortion, and Congress, in the case of emissions, to legislate. Instead of courts protecting abortion rights and an executive agency fighting climate change, voters will have to do the job themselves.

Nothing prevents that from happening with regard to abortion. In Pennsylvania, for example, Republicans dominate the General Assembly despite the fact that the legislative majority is far more conservative than are the people of Pennsylvania as a whole. And this has happened despite the absence of appreciable gerrymandering at the state legislature level.

The current conservative dominance simply reflects political ineffectiveness by Democrats and moderate Republicans.

Why have Democrats ceded all but urban areas, basically disappearing from rural areas and small towns in Pennsylvania? Why have moderate Republicans not threatened primaries against any legislator who votes for extreme anti-abortion measures? Politicians hate primaries, even if they are likely to win them.

In the case of emissions, all the court is requiring is an amendment to the Clean Air Act that authorizes the EPA to reduce “carbon” emissions from energy production.

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Passing such a change would require eliminating the filibuster in the Senate, but the EPA case presents the perfect opportunity to do that. Democrats can legitimately argue that the court itself is requiring majority rule in Congress. In light of that case, the only way to prevent permanent government paralysis is to get rid of the filibuster.

Admittedly, matters are different with regard to guns and religion. In these areas, the court was expanding individual rights, which government cannot rescind.

Critics should concede that the Supreme Court’s holding that concealed carry is a constitutional right was a perfectly reasonable interpretation of the right to bear arms, one with quite a lot of constitutional history behind it. In the Pennsylvania constitutional convention that met from 1872-73, for example, delegates specifically rejected a proposal to exclude concealed carry from the right to bear arms.

But majority sentiment can still be effective. America’s leading constitutional conservative, Georgetown University Law Professor Randy Barnett, has described the rigorous requirements that the District of Columbia government imposes on him, a D.C. resident, to receive a license to carry a concealed weapon—from extensive background checks to extended gun safety training. Licensed carriers must even practice shooting accuracy.

People who go through all that are obviously responsible. These are not people who pull out guns in road rage incidents.

Pennsylvania could impose similar requirements if we had a different General Assembly. And we could have that if the Democratic Party and moderate Republicans mobilized politically.

In the religion cases, it is true that the current Supreme Court majority is defying historical norms in giving religious institutions access to government funds. The framers of the Free Exercise Clause of the First Amendment probably would oppose forcing Maine taxpayers to pay for private religious schools.

But it is odd to hear critics from the left complain that the court is insufficiently originalist. I thought the left endorsed the “living Constitution” approach.

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Times change. Today many nonprofit institutions, including religious ones, will not survive without government funding. 

Plus, the power of religion that the framers so greatly feared does not exist in this highly secularized society. Taxpayers today would likely be more offended by the way some secular private schools teach American history than by the religious messages in private religious schools. Taxpayers pay for the one. Why not the other?

Anyway, the court did not require taxpayer support of religion in Carson. Maine is free to withhold funding from all private education if its voters are that upset about supporting religious schools.

There was a case this term in which the court was quite extreme and which will be hard for voters to reverse. That was Kennedy, the football case in which a high school coach was fired for kneeling in public prayer on the 50-yard line after games. 

The school district was afraid that it would be liable if students felt coerced to join in these exhibitions of piety lest they anger the coach and endanger their playing time.

Many observers were skeptical when the Supreme Court majority held that the coach’s prayers were a matter of individual expression and there was no evidence that the coach coerced students.

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Like all rights cases, this holding by the court is anti-democratic. Here, it is true that voters can have no say.

Nevertheless, the court’s one-sided reading of the record in Kennedy is actually an advantage. The court did not change the law, which remains anti-coercion in religious matters. Concerned students and parents are perfectly free in the next case to argue that expressions of religious belief in their school represent a coercive threat. Each such claim will have to be litigated on its own facts.

Looking at the cases overall, the point is not that nothing changed this past Supreme Court term. Obviously, a great deal did change and many people disagree with what the court has done.

However, it is not for nothing that the judicial branch of the federal government is called the “least dangerous branch.” Decisions by the court are usually pretty easy for a determined majority to circumvent. The court’s effectiveness is often exaggerated. Roe itself did not succeed in protecting the right to abortion in states with anti-abortion legislatures.

This past term was no exception. The cases that are bothering people simply require a democratic political response. They do not demand a surrender.      

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne Kline Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Kline Duquesne Law School.