The leaders in yesterday’s decision to overturn Roe v Wade, which had given women the right to have an abortion, were six justices who sit on the Supreme Court: Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and chief justice John Roberts. The followers were the remaining three justices: Stephen Breyer, Elena Kagan, and Sonia Sotomayor. Given the leaders held the majority view, the minority was, effectively, helpless. Their dissent, no matter its eloquence, was meaningless.
The same held true for other, similar, recent decisions. And it will hold true for other, similar, future ones, whenever the tension is between the right and the left, between conservatives and liberals. This is because the math of the court is simple: 1) nine justices in total; 2) six justices who are lifelong conservatives; 3) all justices with lifetime tenure. This math trumps the other math – the math in which a sizable majority of Americans hold views on a wide range of issues that are opposed to those of the six justices who constitute the majority on the supreme court. As in the case of Roe v Wade, which most Americans did not want overturned.
The ability of six justices legally to enforce their will on many millions of Americans who deeply object is a problem not only as it applies to the court but as it applies to other failures of American governance that are less political than systemic. For example, the electoral college. Three of the court’s conservative justices were appointed by Donald Trump who, in 2016, was elected president of the United States for one term, even though he had fewer votes than did his opponent, Hillary Clinton.
What is to be done? What are the remedies for systemic, structural, failures such as ours? The specifics are not clear. But what is clear is this. They, the remedies, lie not with people in positions of power, but with people who are not. Not with leaders, but with followers. With ordinary Americans who are so fed up with being manipulated and dictated to by those who do not represent them they take matters into their own hands. At the polls, or in the streets, or both.