Samuel Alito’s False Call To Return The Issue Of Abortion To ‘The People’

Through their voting rights and gerrymandering rulings, the Supreme Court's conservatives have limited who “the people” even are.

Supreme Court Justice Samuel Alito wants you to think his decision to overturn Roe v. Wade is about restoring democracy.

The court’s 1973 Roe decision, in which justices voted 7-2 to legalize abortion nationwide, “short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe,” Alito wrote in a draft opinion leaked to Politico. Overturning Roe would, therefore, “return the issue of abortion to the people and their elected representatives,” wrote Alito. Four other conservative justices are expected to join him.

Alito’s nod to democratic decision-making, however, rings false. Since taking his lifetime seat on the court in 2006, Alito has repeatedly sided against voting rights. He and his fellow conservative justices removed barriers to partisan gerrymandering that limits the ability of the people to elect representatives who reflect their priorities. He also backed decisions that gutted crucial voting rights protections for minority communities. And, in dissents he has written or joined, he backed even greater limitations on the ability of the people to choose their representatives.

These positions indicate a vision of democracy that hinders the people from even selecting representatives to decide issues that the court may be so valiantly returning to them.

He is not alone in holding these positions. Nearly all of the six conservative justices would prefer to further reduce voting rights protections and make it even harder for anyone to challenge partisan or racial gerrymanders.

In the 2019 Rucho v. Common Cause decision, Alito joined an opinion by Chief Justice John Roberts that closed the doors of federal courts to complaints of partisan gerrymandering. Alito also joined Roberts’ 2013 decision in Shelby County v. Holder that gutted the Voting Rights Act’s Section 5, which required states with a history of racial discrimination to get “preclearance” from the federal government for any changes to election laws and district maps.

As a result of these positions, Republicans at the state level have gained legislative majorities that greatly outpace their share of the popular vote statewide.

Abortion rights advocates stage a protest outside Justice Samuel Alito's house on May 9 in Alexandria, Virginia.
Abortion rights advocates stage a protest outside Justice Samuel Alito's house on May 9 in Alexandria, Virginia.
Alex Wong via Getty Images

Take Wisconsin, where an 1849 law banning abortion would go into effect if the Supreme Court does ultimately overturn Roe v. Wade. Despite its swing state status, the state Assembly and state Senate district maps are so gerrymandered in favor of Republicans that it is practically impossible for Democrats to win control of either chamber.

In 2012, Republicans won only 46% of the statewide vote in legislative elections, but took 60% of the seats in both chambers. The Wisconsin GOP again lost the statewide popular vote for Assembly elections in 2018, hitting just 45% of the vote, but took 65% of the seats. In election years when the GOP did win the statewide popular vote, it consistently took 10% more seats than the total popular vote percentage it won.

Republicans need to win only 44%-45% of the statewide popular vote to gain control of the state Assembly, according to a report by five political science researchers at Binghamton University. That means Democrats need to win 55%-56% to come close to securing a bare majority of seats.

“Lots of election results are simply unlucky,” the researchers stated in a 2016 Washington Post op-ed. “This is not one of them.”

Similarly, Republicans won legislative majorities while losing the popular vote in Michigan, North Carolina, Pennsylvania and Virginia in 2018.

The latest round of redistricting is making the problem even worse, as new maps contain fewer competitive districts than ever before. This is an especially glaring problem in states with rapid population growth, particularly where that growth has been fueled almost entirely by racial minorities.

Look at Texas, where racial minorities accounted for 95% of the state’s population growth from 2010 to 2020, according to U.S. Census data. The state now features a population that is 39.8% white, 39.3% Latino, 11.8% Black and 5.4% Asian, but its new state legislative map heavily favors the state’s white residents. Sixty-five percent of the new map’s state legislative districts are majority white, while Latinos are in a majority in just 18.4% of districts despite their parity in the overall state population, according to The Texas Tribune.

In terms of partisanship, the new maps drawn by Republicans running the state government cement their majorities despite the state’s increasing competitiveness at the national level. The state legislative maps feature almost no competitive seats. Donald Trump won the most competitive state House seat by 7.9% in 2020. There are only four Democratic-held seats that statewide Democrats won by 5 percentage points or fewer. The new state Senate maps are even less competitive.

Supreme Court Justice Samuel Alito's leaked draft opinion overturning Roe v. Wade claims the court is giving the issue back to "the people."
Supreme Court Justice Samuel Alito's leaked draft opinion overturning Roe v. Wade claims the court is giving the issue back to "the people."
Chip Somodevilla via Getty Images

“Politicians have gotten so good at drawing political maps that they’re spoiling democracy,” the Tribune reported in a review of the Texas maps’ lack of competitiveness.

A similar dynamic is playing out in Georgia, where racial minorities now make up 48% of the statewide population while the non-Latino white population shrank from 59% in 2010 to 52% in 2020. The Black population in the state increased by 12.5%, the Latino population increased by 31.6%, and the Asian population increased by 52.3%, while the white population decreased by 4%. But the state Republicans’ map failed to provide enough new majority-minority seats to match the state’s minority population growth.

The Supreme Court has had a direct role in all of these maps. Prior to the court’s Shelby County decision in 2013, neither the Georgia nor the Texas state legislative maps would have gone into effect without being precleared for racial discrimination considerations by the Department of Justice or federal courts. But that decision, which pitted the five conservatives against the court’s then-four liberals, gutted the preclearance section and opened the door to the dilution of racial minorities’ political power that is happening in Georgia and Texas.

Civil and voting rights advocates are still challenging these and other maps under Section 2 of the Voting Rights Act, which still stands. It is unknown how the current Supreme Court will respond to such legal challenges, but the court has been hostile to voting rights laws for more than a decade now. The increased confidence in their positions that comes with a six-vote conservative supermajority should greatly worry voting rights advocates.

And while we may not know whether the court will further limit the ways voters can fairly select their own elected representatives, we do know the ways that Alito and other conservative justices would like to make it even harder for them to do so.

In the 2015 Arizona State Legislature v. Arizona Independent Redistricting Commission case, Alito and Justice Clarence Thomas joined a dissent written by Roberts that argued independent redistricting commissions created to draw competitive, nonpartisan district maps were unconstitutional. They were on the losing side then, but would probably be on the winning side today.

That’s because of the interest of at least four conservative justices in the independent state legislature doctrine. This dubious doctrine states the U.S. Constitution forbids any entity besides a state’s legislature from having any say on the matter of elections. This would not only make independent redistricting commissions unconstitutional, but it would also ban state courts from reviewing state election laws or district maps for any violations of a state’s constitution. The public would then have no way left to challenge the power of partisan state legislatures to draw their own districts. This position has the support of Alito, Thomas and Justice Neil Gorsuch, while Justice Brett Kavanaugh has stated that the court must take up a case on the issue.

These positions showcase the kind of democracy that Alito wants to “return the issue of abortion” to. It is one where the ability of voters to select their elected representatives is highly circumscribed in a seemingly irreversible manner. It is a democracy where racial minorities are not provided an equal right to representation.

If it overturns Roe, the court will not be returning the issue of abortion to “the people” writ large. Since the court draws its own lines around who “the people” may be ― the people who can actually access elected representation ― Alito and the conservative supermajority, secured by the three justices appointed by a president elected by a minority of the people, would be returning it to a people of their own design.

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