The Supreme Court shows how 'minority rule' is a problem in the US, and its Roe decision was a 'blow for the rule of law,' experts say

Abortion rights demonstrators gather outside the US Supreme Court in Washington, DC, on June 24, 2022.

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• Progressives like AOC have decried the Supreme Court's decision to overturn Roe as anti-democratic.
• Top experts told Insider the decision raises concerns about minority rule in the US, but isn't necessarily a blow to democracy.
• "The really problematic contemporary force here, in my view, is the Republican party," one expert said.

The Supreme Court's decision to overturn Roe v. Wade, driven by the conservative justices on the high court, sent shockwaves across the country and sparked criticism around the world.

The decision upended nearly a half century of legalized abortion in the US. Leading progressives in Washington like Democratic Rep. Alexandria Ocasio-Cortez have decried the move as anti-democratic and a sign that the US is under "minority rule." They've pointed to recent polling that shows a majority of Americans support allowing abortion in most or all cases, while underscoring that most of the conservatives on the Supreme Court were appointed by Republican presidents who lost the popular vote. 

Top political scientists told Insider the Roe decision itself was not necessarily inherently anti-democratic, but the move — on top of other consequential rulings from the court in recent days — does raise questions and concerns about minority rule in the US. They also underscored that America's democracy is in a troubling place more generally, largely as a result of the Republican party's lack of respect for democratic norms and institutions. 

The Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization — the case that saw Roe overturned — "would not have happened if we didn't have the Electoral College," Archon Fung, the Winthrop Laflin McCormack Professor of Citizenship and Self-Government at the Harvard Kennedy School, told Insider. 

Fung said the decision is an example of "indirect minority rule in the sense that minority rule problems in our congressional institutions generated the particular court that we have."

He also characterized the Roe decision as "a huge blow for the rule of law" in that it undid decades of legalized abortion — stripping away a right that people have depended on for years. "Part of the rule of law is that you can count on things tomorrow being kind of like yesterday," Fung said.

"I'm a firm believer that a woman's right to choose is an important right, because it is essential to women's freedom, equality, and dignity. I deeply deeply believe that," Fung said.

He added that he's been "puzzled" by assertions that the decision on its own was a blow for democracy because the ruling effectively punted the issue down to states and people's elected representatives — or the democratic process. But he acknowledged that there are a number of "democratically problematic states," including those where a majority of voters support allowing abortion as their legislatures simultaneously move to restrict or ban access. 

Despite not winning a majority of the vote at the national level in recent elections, Republicans "control a disproportionate share of political power due to a combination of institutional bias and saavier political organizing and manipulation," Sheri Berman, a democracy expert at Barnard College, told Insider.

This is a problem for democracy, Berman added, "because each side is now so entrenched in its hatred of the other that it is willing to do things that undermine the system overall." Berman said that "Republicans are by far guiltier in this regard" — pointing to the GOP's embrace of Trump's unprecedented effort to overturn the 2020 election results. 

"The really problematic contemporary force here, in my view, is the Republican party," Berman said.

And this is not because of the GOP's policies, Berman added, but for the party's role in "undermining the democratic rules of the game."

Republicans have played 'fast and loose with the rules of democracy'

Trump stands with Justice Amy Coney Barrett at the White House after she was sworn in on October 26, 2020.

Brendan Smialowski / AFP via Getty Images

Berman said it was "egregious" for Republicans to play "fast and loose with the rules of democracy" by derailing the appointment of a justice under President Barack Obama — Merrick Garland — and then rushing to appoint a conservative justice — Amy Coney Barrett — during the final days of the Trump administration. 

There's "nothing inherently 'wrong' with having a majority of justices appointed by one party," Berman went on to say. But the court is also supposed to be non-partisan or "at least a 'check and balance' vis-à-vis the other branches," Berman said, "so when the justices' decisions become an easily predicted function of their partisan background, that neuters its ability to act as our political system's referee and diminishes its legitimacy overall." 

To Berman's point, recent polling from Gallup shows confidence in the Supreme Court has hit a historic low (25%). 

"This court is clearly a Republican court," Jason Stanley, an authoritarianism expert at Yale, said during an interview on PBS's "Amanpour and Company" this week, warning that the US was tilting toward becoming a one-party state.

"This court is very clearly a partisan court" that's "fulfilling a nakedly partisan agenda" via rulings like the Roe v. Wade decision, Stanley said, calling it "extremely worrisome." 

"We had a president voted in by a minority of the population appoint three radical right Supreme Court justices," Stanley went on to say, alluding to former President Donald Trump and the conservative justices added to the court during his tenure, going on to say they're "fulfilling, point-by-point, a Republican party platform." 

Lee Drutman, a political scientist and senior fellow at the New America Foundation, in a tweet on Thursday said America's democratic institutions have "failed to represent solid majorities on the environment, guns, and abortion," adding that this "negligence allowed a revanchist Supreme Court to impose minority rule." 

"It's time to upgrade our political institutions," Drutman added. "It's time for proportional representation."

Fung said he's "extremely worried" about the state of US democracy, particularly in relation to the growing distrust Americans exhibit toward fundamental institutions. "Citizens, elected officials, and judges need to be doing everything they can to build back toward a path in which these institutions have more legitimacy," Fung said. 

Similarly, Berman said it's concerning when people on both sides of the political spectrum "are conflating decisions they don't like with decisions that are non- or anti-democratic." 

Ruling that states should decide on whether abortion should be legal is not inherently anti-democratic, Berman said, but how Republicans have acted regarding the appointment of Supreme Court justices on top of their dangerous embrace of former President Donald Trump's effort to overturn the 2020 election results is indeed anti-democratic.

Americans should use democracy to fight against decisions they disagree with, Berman said, while doing all they can to "protect the (democratic) system that allows them to (peacefully and regularly) fight to have their policies realized."  

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