The Fix Is In

The Court says formerly fundamental rights, like abortion, should be sent back to the States’ elected representatives while at the same time doing its best to erode that very democratic process.

Matthew Schafer
4 min readJun 24, 2022

In Dobbs v. Jackson Women’s Health Organization, the Court overruled Roe v. Wade and Planned Parenthood v. Casey. In doing so, it claimed the mantle of democracy: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Nor was this a passing observation — it was the primary smokescreen the Court deployed to coverup the manifest injustice it wrought, or, as the joint dissent called it, an opinion where only “the proclivities of individuals rule.”

Indeed, five Justices (apparently graced with greater legal prowess than the seven Justices who decided Roe) chastised their former colleagues for wresting the debate over abortion from the States: “The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.”

Or, as the Court put it elsewhere, its decision in Dobbs was prudent as it had a history of “overruling decisions that wrongly removed an issue from the people and the democratic process.”

Of course, this is all bunk. Rights guaranteed by the Constitution — including, at its most basic, individual autonomy over one’s own body — are exactly the kind of thing that should not be put to vote-tallying. A citizen should not be forced to plead for fundamental rights from their fellow citizens who would deny them those very rights.

The whole point of the Bill of Rights, after all, is to foreclose putting certain constitutional rights to the vicissitudes of the democratic process. That is precisely the point: to draw a line in the sand beyond which one need not engage in democratic bargaining to vindicate individual rights.

But the suggestion by the majority in Dobbs that its decision is democracy-enriching is remarkable coming from a Court that is remarkably anti-democratic. And, stocked, as it is, with hardline Justices from a treasonous political party that has long since lost its way; to say nothing of being appointed by a twice-impeached President who lost the popular vote.

What democratic processes relating to abortion rights (or any other) are citizens meant to avail themselves of in the Court’s mind? The very same Court that has (1) greenlit corrupting, unregulated dark money in politics, (2) upended the Voting Rights Act and its protections for minority voters, (3) eroded the foundational principle of one person, one vote, (4) intervened in state map drawing in favor of its preferred political party, and (5) okayed ostensible political kickbacks?

What’s worse, several Justices are bent on breathing life into the once fanciful principle that state legislatures alone control the federal franchise irrespective of whether those legislatures violate their own state constitutions in doing so. We’ll find out if the Court will take up and likely endorse that disastrous fringe theory on Monday. It almost certainly will.

Against this backdrop, what, I ask, are we supposed to make of the Court assuring us that all it is doing is returning Roe to the states to decide?

Against this backdrop, what, I ask, are we supposed to make of the Court assuring us that all it is doing is returning Roe to the states to decide the issue through staid democratic debate? What are advocates to do with their alleged democratic agency in an anti-democratic system that the Court boobytraps at every possible turn?

Nothing, of course. Because the Court is simply gaslighting us all.

Make no mistake, the Court has no intention to put these issues to actual democratic debate and decisionmaking. Democracy in the United States — in large part due to the Court — is, quite simply, too far down the road to farce. Today, Dobbs simply turned the corner, and revealed to us all what we long expected: we’re heading toward a cliff.

Other attacks on self-governance are on their way too. On Monday, the Court will decide whether to take a case making it easier for the powerful — in politics and society — to sue their critics. Clarence Thomas and Neil Gorsuch have already signed up to overrule yet another landmark precedent that makes democrat debate more free.

The reason for these supposed champions of the democratic process to want to cut off democratic debate? They are outnumbered; products of a time that has long since been passed by. So they have little choice but to cling as tightly as possible to anti-democratic principles to prevent the rest of the country from moving forward.

And, state legislatures will continue their war on self-governance too. Making it harder to vote, harder to get an education, harder to read certain books, harder to live your life free from government interference — all while egging on those whose only banner is “Freedom for me, but not for thee.”

Again, make no mistake. We are in a very dark place; this is not what a liberal democracy looks like. Today, it’s a woman’s autonomy over her own body; tomorrow, its a couple’s choice to use contraceptives, and then the right to intimacy in one’s own bedroom, or the right to get married.

There is no off-ramp before the cliff for any of these eventualities — short of packing the Court, which the Democrats should be quick to do. Absent that, there will only be more pain for millions of people, more oppression, more hopelessness for a long, long time.



Matthew Schafer

Media Lawyer. Adjunct Professor/Mass Media Law at Fordham University School of Law. Twitter @MatthewSchafer