Courts Should Check ‘Majority Rule’
Making its case against the reelection of Donald Trump this week, The New York Times complains that the president has been “filling the benches of the federal judiciary with young, conservative lawyers as a firewall against majority rule.” While it is hardly surprising that the Times would be dismayed by the appointment of conservative judges and justices, the suggestion that courts are acting improperly when they check the power of “majority rule” is puzzling.
Courts are supposed to frustrate the will of the majority when it violates the Constitution. Americans on the left and right expect courts to do that, although they disagree about which constitutional constraints judges should be enforcing.
In the same package of anti-Trump essays, the Times worries about the fate of Roe v. Wade, the 1973 decision in which the Supreme Court said broad abortion bans violate the 14th Amendment’s Due Process Clause. Roe and its progeny clearly impose restrictions on majority rule, telling democratically elected legislatures how far they can go in regulating abortion.
Most conservatives—probably including Amy Coney Barrett, the originalist Trump picked to replace Justice Ruth Bader Ginsburg—believe Roe was wrongly decided, since it relied on the dubious concept of “substantive due process” to discover a right to abortion. Ginsburg herself questioned the Court’s reasoning, saying an argument based on the 14th Amendment’s guarantee of equal protection would have provided a firmer foundation.
But if you think the Constitution, under whatever provision, imposes limits on abortion laws, there is no escaping the conclusion that it requires courts to override some decisions by legislative majorities, even when those decisions are supported by most citizens in a particular state. The
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