Democracy and the End of Roe

This will just reinforce minority rule in the US.

“Confused Democracy” by Steven Taylor is licensed under CC BY-NC-ND 4.0

As we digest the overturning of Roe and Casey, I want to note a key aspect of all of this: this outcome is going to cement the rationalizations of millions of Americans as to why the Trump presidency was worth it. It will allow a host of persons to reinforce in their minds that whatever flaws the former president had, that voting for the Republican nominee was the way to achieve their preferred outcomes.

This ruling will allow a thousand blossoms of we are “a republic, not a democracy” despite little understanding of what the formulation is supposed to mean (most people will probably say that it has something to do with letting states decide–conflating republicanism with federalism). It will certainly cement the notion, whether understood or acknowledged, that minority rule is justifiable.

Lest we forget, the majority on the Court that issued this ruling is made up of three Justices who came to office via a president who failed to win the popular vote, two more who came from a president whose first term likewise was via such a popular vote inversion. There is also the representational disjunctures of the Senate itself to take into consideration.

At a minimum it is impossible to ignore that the current make up of the Supreme Court is a direct result of the Electoral College. This will cause further political polarization in the United States, as opponents of this ruling will deepen their view that the EC is undemocratic and has to go while those in favor will have enhanced positive feelings about the EC as a uniquely laudable aspect of American constitutional structure.

Without even getting into the abortion issue itself, I think it is worth pausing to consider the degree to which this is all the result of citizens not being treated equally. Some votes counted more than others. Some citizens’ preferences were counted as more important than others, and all of that was summed to the majority being thwarted by the will of the minority.

And a sizeable chunk of that minority has now achieved a decades-long goal and so their interest in addressing our democracy deficit is likely quite small (it is certainly smaller today that it was yesterday).

Note that all of this is fundamentally a problem within the structures of our institutions.

FILED UNDER: A Republic Not a Democracy, Campaign 2016, Campaign 2020, Democracy, US Politics, , , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. Scott F. says:

    Oh, goody. Not only were all American women of child bearing age made second class citizens today, but the majority of voters were screwed as well. I know it’s still early here in California, but I’m opening the scotch…

  2. EddieInCA says:

    Me this morning to my wife: “They did it. They overturned Roe”

    My wife: “I’m so glad I’m waking up in California and not Texas, Alabama or Oklahoma”.

  3. CSK says:

    Clarence Thomas says the court should next “reconsider” contraception and same-sex marriage.

    I am not joking. This is being widely reported.

  4. Mikey says:

    @EddieInCA: For now, but when the Republicans regain control of all three branches of government they will most certainly pass a nationwide ban, and then it won’t matter where a woman wakes up.

  5. Daryl and his brother Darryl says:

    I’m damn glad I live in CT where women are still considered people and not chattel.

  6. CSK says:

    Trump says “God made the decision” to overturn Roe v. Wade.

  7. Daryl and his brother Darryl says:

    Wait – wut???
    The Federalist Society is God?

  8. CSK says:
  9. Lounsbury says:

    @CSK: to support

    You should be overjoyed.

    He has handed you with such comment the very stick you needed. Make this your war cry.

  10. Flat Earth Luddite says:

    Thank you Steven.

  11. Flat Earth Luddite says:


    In a solo concurrence, Kavanaugh wrote: “Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”

    Bwa haha hahahaha hahahahahaha.

    Tens of thousands of comedians starving, and he’s giving them away.

  12. Chris says:

    Today, Senator Collins is now in the pantheon of fools who thought that people of questionable motives could be believed and trusted. She should easily win the 2022 Neville Chamberlain award.

  13. Daryl and his brother Darryl says:

    This fakakta decision brought to you, in part, by every journalist that gave oxygen to the “…but her emails” nonsense in 2016.

  14. Gavin says:

    This is the re-litigation of every piece of legislation thought to define “America” back to the Constitution.

    ‘We the People’

    Who exactly defines this we you’re talking about? What group makes up The People?

    This decision affects every human in this country – my mother was a woman, and so was her mother before her.
    One hopes women [re]discover Lysistrata.

  15. Daryl and his brother Darryl says:

    I’m not sure what language you are posting in…but yes…please…take away some more rights from Americans. I am quite positive that is the winning formula for Republicans in the mid-terms.

  16. CSK says:

    What on earth are you talking about?

  17. Raoul says:

    And let’s not forget the notorious RGB who refused to retire while having one of the deadliest forms of cancer (90% fatality rate) as an octogenarian. I guess some irreplaceable people are more replaceable than others. As one of the most esteemed feminists in her era, she did more harm to the women’s right movement than any other person: her legacy is now complete with a body count of 10,000 dead women a year according to Atrios. And let’s not also forget the Jill Stein and Susan Sarandon of the world: no wonder the women’s lib movement is in shambles, one reaps what they sow.

  18. Daryl and his brother Darryl says:

    From the only President in the last 6 years to win the popular vote;

    “Today the Supreme Court of the United States expressly took away a constitutional right from the American people that it had already recognized…They didn’t limit it, they simply took it away.”

  19. CSK says:

    In thirty days, Texas will ban all abortions from “the moment of conception,” except to preserve the life of the mother, or if her health will be seriously jeopardized.

  20. Kathy says:

    I don’t know if it may be a winning issue or not, but Democrats ought to propose a law to “legalize” abortion in the country, and run in the midterms for it, while attacking Republicans who will be against it.

  21. Michael Reynolds says:

    @Lounsbury: is right, and he’s right because he grasps that this is war. In every crisis is an opportunity. We were heading into disastrous mid-terms, and SCOTUS just gave us a powerful weapon.

    We need to start thinking as strategically as the enemy does. We need to be as unified as they are. We need to cut the defeatist bullshit and win.

  22. wr says:

    @Michael Reynolds: ” We were heading into disastrous mid-terms, and SCOTUS just gave us a powerful weapon.”

    I suspect just about everyone here agrees with you and Lounsbury. It’s just that his mastery of the English language is so disastrous that none of the others could figure out what he was saying.

  23. Kathy says:

    @Daryl and his brother Darryl:

    No. It’s Mitch McConnell.

    Had he allowed a vote and Garland been confirmed, an all other things remained equal, the decision on this case would most likely had been 5-4 against, seeing as Roberts wanted to preserve Roe.


    Yes and no. She should have retired on a high note in 2015. But that’s partly hindsight.

  24. Mu Yixiao says:


    It’s just that his mastery of the English language is so disastrous that none of the others could figure out what he was saying.

    Add in the missing commas and it makes perfect sense. I understood it (though thought it was pretentious phrasing).

  25. Scott F. says:

    @Michael Reynolds:

    We need to cut the defeatist bullshit and win.

    Well, I’ve got my vote. Granted I live in California, so my vote is worth about 1/8oth that of a Wyoming Republican. But that said, I’ve gotten maximum value since I live in CA 49, so I have managed to help elect Democrats to the House, two Senate seats, and the governorship with my enfranchisement.

    And, I’ve got some disposal income. It’s not Charles Koch level disposal income, but I’ve sent what I can to candidates, policy advocates, and GOTV efforts in Georgia and Texas.

    I’ve got a pen, so I write to my elected officials with some regularity. Though, I don’t think my representatives don’t understand what needs to happen.

    I ask this sincerely, what else would you have me do? I’m not being defeatist. I simply don’t have the tools.

  26. Jay L Gischer says:

    Six out of six of the justices who put this forward are Catholic. I just looked up Clarence Thomas, who I wasn’t sure about, but yes, he was raised Catholic, too.

    This decision violates religious freedom in a very fundamental way. The Catholic Church is fundamentally a highly authoritarian organization – see “papal infallibility”, and it seems bent on imposing its moral rules on everyone else.

    It doesn’t matter that they don’t explicitly say so, but the foundation for the decision is “a fetus has a soul”, which is a religious belief. The facts of the situation could equally well be described by “a fetus is part of the mother’s body”.

    I care nothing for Kavanaugh’s protestations that other decisions such as Griswold, etc, are not on the block. He’s a filthy liar, who is known to say whatever is expedient at the moment. I expected no less from from him given his history and performance before the Senate.

  27. Mister Bluster says:

    @Jay L Gischer:..“a fetus has a soul”, which is a religious belief.

    The notion that born humans have a soul is also a religious belief.

  28. Michael Reynolds says:

    @Scott F.:
    I’m in California, safely blue. But I give money to an organization that works to flip state legislatures, and to candidates, and the party. I went to Las Vegas and canvassed door to door for Cortez Masto. True you can’t do as much as a committed Democrat in, say, Missouri, but state lines are not impenetrable.

  29. Flat Earth Luddite says:


    Texas will ban all abortions from “the moment of conception,” except to preserve the life of the mother, or if her health will be seriously jeopardized

    Texas will … ban all abortions from “the moment of conception, unless she’s a rich upper class debutante or the child of same”

    Just my opinion. YMMV.

  30. CSK says:

    @Flat Earth Luddite:
    I imagine rich debutantes will fly to New York for the procedure, or perhaps California, and get a little shopping done as well.

  31. Pylon says:

    Prediction: the outrage will calm down. The right has gambled, probably correctly, that while abortion rights have majority support in the US, they also directly impact far less than a majority (or, at least a majority of Americans don’t think they will be affected). Thus, while abortion rights are weakly supported by a majority, they end up being actively opposed by a very active minority. Who ends up winning.

    And the EC and the Senate structure assist in this immeasurably.

  32. Lounsbury says:

    @Flat Earth Luddite: The dim ideological bulb that is Mr Thomas has handed you guys the knife you need in his immediate comments widening to contraception … I dearly hope you are adept at using it. People are reasonably conflicted about Abortion but contraception, that one is a huge lever to use. (as well as the other dependent items under threat)

    @Daryl and his brother Darryl: eh? What?

    @CSK: Thomas has given you a bloody rhetorical stick to beat them with (them being the Republicans lest that be in doubt), a gift. It is the kind of statement that is like a gift from a Politicla God to bloody use for a wider mobilisation. Jesus you Lefties are a precious woe-is-us maundering lot.

  33. dazedandconfused says:

    @CSK: I’ve seen Mitch McConnell called a lot of things, but “God” had not been one of them.

  34. CSK says:

    You could have said so the first time.

  35. Modulo Myself says:

    The Dems shouldn’t be focusing on hypotheticals. Abortion has been part of the mainstream since the 70s. The GOP has shut down the availability of abortion in many red states, but they haven’t criminalized it. Once you ban it, it’s a criminal activity, no different than buying heroin. This is a huge leap into the abyss. What happens if you carry RU-486 into Missouri or Louisiana? Are there going to be agencies searching women now for FDA-approved contraband?

    The Democrats should be ready to fight along these lines. You can’t unmake a right without mass amounts of repression. And you can’t pretend that the other side is the enemy of a fundamental right and have to be treated accordingly. Some people are squeamish about abortion, but very few are dying to move to the dumbest most-backwards county in Mississippi.

  36. JohnSF says:

    I’m not a lawyer, nor an American, still less an American lawyer.
    So, can I ask: isn’t the implication of this judgement that there is no longer a basis for federal judicial protection of common law rights, i.e. any rights not enumerated in the Constitution and Amendments, or by federal or state statute?

    If so, doesn’t that totally explode the entire basis of common law?
    At least as a federal, rather than state, system?

    I seem to recall that Madison argued against an incorporated Bill of Rights on this basis; that it reduce non-enumerated rights to subordinate status?

    OTOH, given that the Constitution was framed within a structure of slavery and female subordination, you might think that legal scholars would attempt to view the whole thing a bit more objectively.

    Constitutional strict originalism strikes this rather ignorant outsider as a bit like English judges suddenly deciding that it’s necessary to reinstate the privileges of the barons to feudal tithes.

    Incidentally, you may be interested to know that in the UK the government has published a Bill of Rights Bill which is in fact an assault on our rights.

    It’s only redeeming feature would be if the get antediluvian Tory MP Bill Cash to move it, and present him with an invoice: which would of course be the Bill’s Bill of Rights Bill bill 🙂

    A quote from my late father:

    “The scales of law may tend toward justice. But you need to watch out for the sneaky Tory bugger trying to put his finger on the scales.”

    Conservative my arse.

  37. @JohnSF:

    you might think that legal scholars would attempt to view the whole thing a bit more objectively.



    But, it is so much easier to pretend like there is some absolute standard against which to judge these things-especially if it gets you the outcome you want!

  38. Gustopher says:

    @CSK: Do you not speak gibbers and squeaks?

  39. Monala says:

    @EddieInCA: My daughter will be a high school senior next year. This greatly affects her choice of colleges.

  40. EddieInCA says:


    Interesting that you note that. A young cousin of mine was accepted to Texas A&M, Oklahoma State, and UCLA. Despite living in Texas, she’s headed to UCLA… as of this morning.

  41. CSK says:

    Gibbers and squeaks elude my linguistic capabilities.

  42. JohnSF says:

    Gotta have defend the Louns again. (JohnSf haz sad 🙂 )
    He has a point.
    Democrats need to weaponise this.
    Engrave it on a sword and stab it into your opponents heart.

    Between this and the Jan6 hearings, they should have the means to get out the vote and bring uncommitted voters onside for the mid terms.

  43. Just nutha ignint cracker says:

    @Mikey: Not a problem. Women with the economic means will still be able to travel to foreign countries to get abortions, and considering that having economic means is all that matters in modern conservative philosophy, everything is as it should be.

  44. Just nutha ignint cracker says:

    @CSK: He’s just buying into the “message is everything, politically” slogan that crops up here from time to time. If liberals get the “right message going,” “the center” will shift left and Republican party politics will be repudiated and SCOTUS will magically change back to traditional balance.

    (Not holding my breath waiting for this, BTW. 😐 )

  45. Modulo Myself says:

    It will allow a host of persons to reinforce in their minds that whatever flaws the former president had, that voting for the Republican nominee was the way to achieve their preferred outcomes.

    I don’t sense any joy at all from pro-life opponents on this day. Like, if the DREAM act you would have seen happy people. When Obergefell passed people were happy. They were thrilled. The Christian right has as much happiness as Trump, which is to say none. It’s all bitter performantive resentment and projection. Half of these people are rubbing their hands together in anticipation of rioting. All of this talk about how Trump was useful for a goal. He made them cruder, dumber, and more bleak and foul than any of their bigoted predecessors.

  46. The Q says:

    1988 Willie Horton type Commercial: opens with grainy black and white footage, woman running from a pack of men, who catch up, drag her to behind a building…she comes out, disheveled, obviously raped. Narrator: “this Ukrainian woman will be forced to have her Russian baby, just like an American woman in Texas should this happen to her there.” The soldiers speaking Russian in black and white fade into color speaking English cowboys in a bar wearing Lucchese boots and Stetsons….

    VOTE DEMOCRAT so you won’t be forced to carry Daddy’s baby!!!!

    Like that Mr. Reynolds?????

  47. Just nutha ignint cracker says:

    @CSK: And Mississippi and Louisiana will say “hold my beer” and eliminate those 2 exceptions.

  48. Mikey says:

    @Modulo Myself: I saw some asshole on TV today expressing great joy at this decision, comparing it to the Allied invasion on D-Day and saying “we will get to Berlin, we will make it a crime in every state to kill a baby.”

  49. JohnSF says:

    @Just nutha ignint cracker:

    “message is everything, politically”

    I can’t claim to infallibly interpret the oracular pronouncements of Lounsbury 🙂
    But that’s not how I would think of it; and being a fellow old-worlder, I suspect Lounsbury may be thinking along the same lines.

    Not “the message is everything” but, regrettably, but inevitably, because this is what a critical element of “Conservative” Republicans have chosen: POWER is everything.

    The Democrats are going to have to secure power and use it.
    Which is where I perhaps part company with Lounsbury: he seems to be still advocating a legalistic approach to Jan6 prosecutions.
    IMO you are in a political knife fight.
    Rules, schmules.

    Question: is Merrick Garland the man for these times?
    Maybe you need to reincarnate Homer Cummings.

  50. @Modulo Myself:

    I don’t sense any joy at all from pro-life opponents on this day.

    Look, I have been largely working at home by myself today, but I know enough about Evangelicals to know that they are certainly thrilled at this and that it will absolutely help them further rationalize their vote for Trump. I am extremely confident in this view.

  51. Modulo Myself says:

    @Steven L. Taylor:

    Except for the most simple-minded of these people, I doubt there’s much unadulterated joy. For example, Rod Dreher begins this celebration with Hallelujah Roe Has Fallen and then it veers into how churches and pro-life centers are going to burn until he ends whining about woke capitalism being pro-choice. He’s no different than most of these people. What they’re rationalizing with Trump is that they are bitter and joyless as he is, and that’s the lure. All of the pro-life morons finding souls in a 4-week old clump of cells has always been pseudo-moralism. It’s the equivalent of a Thomas Kincaid painting.

  52. Paine says:

    “I would predict that the effect is going to be that more and more red states are going to become more red, purple states are going to become red and the blue states are going to get a lot bluer,” Josh Hawley said. “And I would look for Republicans as a result of this to extend their strength in the Electoral College. And that’s very good news.”

    Read more at:

    This is why I’m not so sure they will go for a nationwide ban. If they suspect this will reinforce immigration patterns that help them in the long run they will allow the blue states to maintain the status quo.

  53. Beth says:


    So, basically you’re right, under this there is no protection for common law rights, unless those rights existed in 1788.

    Also, the vast majority of Americans have no idea what common law is beyond we got it from yous. I doubt most Americans and even other American attorneys could describe what makes common law differ from civil law*. You know you’re talking to someone who doesn’t get it when they rail against “judge made law”.

    *some might know that civil law is French and therefore bad.


    Someone needs to explain to Hawley that’s how you destroy this county. Especially when we Blue states pay for his crap.

  54. Lounsbury says:

    @CSK: Small phone screens, but really not that hard.

    @JohnSF: Well yes. (except I am not sure I advocate anything relative to 6Jan other than one should for legal strategies never bring cases that are rolling the dice, as setting negative precedent is bad business).

    As for lessons, see BoJo, the selling of the Brexit. Not bloody simple minded “message” foolishness. Someone hands you a knife, you bloody you use it and bang away and away and away (or twist, whatever). No shame, no bloody intellectualising…

    Perhaps being of Imperial Confetti leftovers heritage gives one a different sense of things, or perhaps the Left side is too rather full of eggheaded intellectualism and hand-wringing maundering on.

  55. JohnSF says:

    But objectively looking at the logic of the argumentation of strict constitutionalism, as opposed to the legal conventions (where I bow to your superior knowledge), I can’t see why it would even provide cover for common law rights that existed prior to 1788.

    I think that was Madison’s initial reason for opposing codified rights.
    To lazy right now to google or dig out old US history lecture notes. 🙂

    At the federal level anyway; maybe you could argue that protection might exist but only under state law?
    And boom! here come 50 odd separate legal systems and the disintegration of pan-US regulatory frameworks, thus demolishing not only a concept of general rights, but also the common commercial law and business regulation!
    Say goodbye to the US a single economic space!

    Dear Republicans: be careful what you wish for, for you may receive it.

  56. Beth says:


    The boom is what comes next. The Republicans desperately want to kill the administrative state as much as they want to kill all rights not held by the Dr. Joyners of the country (I know, I’m being pissy).

    We are about to find out what happens when this wet dream comes true. The only upside is that of the red states only TX has any real economic power. It might be worth it for the blue states to band together and stick it to the reds economically.

    Also, I have zero understanding of why we’re are stuck at 1788 and 1868 as if the county could be frozen in amber

  57. Lounsbury says:

    @JohnSF: Republicans: Brexit in short.
    But Thomas has handed the Democrats a litre pint.

  58. Just nutha ignint cracker says:

    @JohnSF: The problem with language transmitted over distance is 3 (or more)-fold. What one person reads may not be what the other person intended to write. (I used to use the phrase “the problem is that what you heard was not what I meant” to help explain to my writing students why standard formal written English was important–it reduced the likelihood of mishearing/misreading.) What the reader reads may be colored by ignorance about the writer. In communication over a distance–either written or transcribed–one lacks the utility of asking “wait a sec, what do you mean ‘xyz’.”

    I’m absolutely positive that what I heard is not what Louns meant. I also don’t particularly care. I’m pretty sanguine (or is that sang-froid?) about the fact that whatever way Dems decide to craft whatever message they craft, one faction or another will become offended, declare that the loons have taken over, and pick up whatever marbles they brought on their way home. It’s the nature of cobbled together coalitions consisting of whoever says “I’m with youze guyz” (no offense intended to Beth or others) for however long they decide to stay. (And who pay no fees and submit no applications to belong.) But I’m just one of the disenfranchised, so go on without me.

  59. Just nutha ignint cracker says:

    @Beth: “(I know, I’m being pissy).”

    No, you’re not. (Well, yes, you are…**) You’re reflecting the reality of how “rights” work in conservative, Republican, Confederate-lite, areas.

    (**…but it’s overshadowed by the reality of whose ox is getting gored compared to who cares. I’ve said that it really doesn’t matter to ME who gets elected because I’M GENERALLY NOT AFFECTED by what de gubmint decides on a lot of occasions here. And yes, it is selfish of me, but I don’t see how I can change the climate of the country.)

  60. Beth says:

    @Just nutha ignint cracker:

    Lol, none taken. I refuse to say “Y’all”. I say “yous” unironically. It’s my heritage. Lol

  61. Chip Daniels says:

    @Steven L. Taylor:

    I agree with the caveat that the Christian Dominionists, like most religious fanatics, are never actually happy, since they know that somewhere, there is someone who is not, yet, quite behaving as the fanatic wishes them to.

    This isn’t a slur or quip, its just a sober observation of religious fanaticism.
    These types of religious beliefs don’t spring from a place of love and acceptance of their brothers and sisters, not from a place of wonder and gratitude at the Deity’s benevolence, but instead, it springs from a dark place of anger and resentment and an all-consuming desire to Make The Rabble Obey.

  62. Kurtz says:


    To your first comment: yes.

    To your second comment: yes, in spirit.

    I’m just skeptical lone concurrences matter. Especially with a second lone concurrence from a Justice within the same ideological sphere that seems to be an attempt to allay fears of erosion of other rights.

    Maybe I’m just cynical about American culture in general or stuck in the bubble opposite of our West Coast friends.

    I mean, I regularly pass a house flying not one, but two flags:


    I know it
    You know it

    It’s one thing for a person to insist on a clearly erroneous belief. It’s quite another to insist that I share that belief.

  63. Skookum says:

    Question: Do political or social science research nonlinear dynamics? Until yesterday I thought voters could prevent the United States from becoming a Christian authoritarian state, but today I believe that the Federalists, John Birchers, evangelical Christians, Catholic forces have created a nonlinear effect by years of crafty, committed planning that cannot be reversed through the ballot box. If so, the norms of democratic participation relied upon by most Americans must re-imagined. And at nearly 70 years of age, I am beginning to emotionally prepare myself that the America I believed in (and the vision of founders who believed in separation of church and state) is irrevocably gone for the rest of my life.

  64. dazedandconfused says:


    That smarmy bastard Thomas left himself wide open. Only a matter of time before someone mentions to him that the Loving decision was made on the same basis the cases he cited were.

  65. wr says:

    @dazedandconfused: “Only a matter of time before someone mentions to him that the Loving decision was made on the same basis the cases he cited were.”

    And what difference would that make? Do you really believe that these six justices are basing their decisions of on reasoned judgment? They’re going to do whatever makes them feel good, and you’ve got a problem, they’ll tell you to argue with the 16 century witch burner.

    Loving affects Thomas. Roe does not. That’s all that matters here.

    Although honestly I wouldn’t be surprised to see him writing an opinion striking down Loving, but grandfathering in all interracial couples who got married in 1987 and live in Virginia. Because suck it, libs.

  66. Jax says:

    @wr: Maybe he’s lookin to get rid of Ginni. I mean, he’s “Catholic”, right?! If you can’t divorce them in the eyes of the Lord, change the law that allowed them to marry in the first place. 😛