I’ve been wryly amused by the coverage of yesterday’s Supreme Court ruling in Moore v. Harper, which has, in almost every case, cast the majority’s decision as a great victory for “democracy.” It was no such thing. On balance, I think the Court’s decision in Moore was correct on the merits, even if I have serious reservations about John Roberts’s mootness analysis. But it wasn’t “democratic” — at least, not when it comes to separation of powers. Properly understood, Moore represented a rejection of the claim that a given set of powers is limited to the legislature and the executive, and was thus a confirmation of judicial authority. Having asserted its jurisdiction to hear the case, the Court “extolled judicial review as one of the key virtues of a constitutional system,” reiterated that judges may “impose restraints on state legislatures,” and concluded that, “when state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review.” The upshot: that legislative district maps drawn by a state’s legislature can be thrown out by a state’s courts on the basis of vague rules in a state’s constitution.
Again: I have no issue with that per se. The important question is whether the Court is correct. If it is, the decision is good. If it’s not, the decision is bad. But I have found the tone of the coverage somewhat annoying in comparison to, say, that of Dobbs, a case that achieved precisely the opposite outcome — the removal of judicial authority over a key question — and which was nevertheless described as a “power grab” by the same people who celebrated Moore. As I noted in a recent magazine piece, this characterization gets it completely backwards:
Complaining about Dobbs in the Atlantic recently, Kimberly Wehle submitted that, “by its own maneuvering, the modern Supreme Court has made itself the most powerful branch of government.” She then pointed as an example of this to “the Court’s ending of long-established reproductive rights in Dobbs v. Jackson Women’s Health Organization,” a decision that, per Wehle, had granted “extreme power” to the Court and made it “superior to Congress,” “superior to the states,” and “superior to the people.” This line was a popular one on the left. Commenting on the ruling after it was officially announced, President Biden called it “an exercise in raw political power,” Vice President Kamala Harris argued that it had served to “undermine our democracy,” and Senator Elizabeth Warren insisted that the justices in the majority had “forced their unpopular agenda on the rest of America.”
Which, of course, is completely ridiculous. Never mind that, as a purely jurisprudential matter, the question of “democracy” was irrelevant to the correct outcome in Dobbs. What mattered in that case, as in others, was not whether the public liked or disliked abortion, but whether the Constitution does, indeed, take the question out of the voters’ hands. It remains an undeniable fact that the decision has yielded a marked increase in American democracy. Before Dobbs, American abortion policy was decided by the courts, which, for nearly half a century, had routinely struck down the will of the majority in the name of individual rights; after Dobbs, the states were free to regulate the practice as they saw fit. By stupidly insisting that the Supreme Court had acted “undemocratically” by returning a contested issue to the states, progressives not only got the facts completely and obviously backwards, they made it harder for their allies to defend the many, many judicial interventions that they continue to support. Obergefell, you might have noticed, was not exactly Tocquevillian in nature.
All told, these two cases have shown why evaluating Supreme Court decisions on the basis of their effects on “democracy” is typically useless even when the analyst gets his facts straight. There are parts of our Constitution that are democratic, and there are parts that are not. The important inquiry — the only inquiry, if the Court’s power is to be legitimate — is into which is which.