ELECTORAL REFORM
Talk of National Abortion Ban Underscores Need for Electoral College Reform
Presidents out of touch with public opinion appoint judges amenable to problematic legislation
In announcing his bill that would institute a nationwide abortion ban after 15 weeks of pregnancy, Senator Lindsey Graham (R-SC) made the choice very clear to voters: “If we take back the House and the Senate, I can assure you we’ll have a vote on our bill. If the Democrats are in charge, I don’t know if we’ll ever have a vote on our bill.”
Graham’s bill comes on the heels of the Supreme Court’s ruling in June (in Dobbs V. Jackson Women’s Health Organization) overturning the Constitutional right to abortion that had been in place since the 1973 decision in Roe V. Wade. I wrote previously about how the decision in Dobbs highlighted the need for Electoral College reform. Graham’s most recent bill further underscores this need.
Supreme Court Appointments from Presidents Who Lost Popular Vote
Republicans have won a plurality of votes in exactly one election since 2000, yet over the past 22 years, a Republican has controlled the presidency for 12 of them. Over the course of those 12 years, the appointment of Supreme Court justices was in the hands of presidents who had lost the national popular vote. There were notably no Supreme Court vacancies during George W. Bush’s first term in office, but he was able to appoint two justices–John Roberts and Samuel Alito–during his second term.
While Bush won the popular vote in his reelection bid, he would not have been in the position to seek reelection if the Electoral College had not awarded him the presidency in 2000. Roberts and Alito are, of course, notable justices in the discourse surrounding the Dobbs ruling, as Alito wrote the majority opinion and Roberts is the current Chief Justice, whose Court will forever hold the legacy of overturning the precedent set by the Burger Court in Roe.
Notably, it was the ability of Donald Trump–-who lost the national popular vote by roughly 3 million votes — to appoint three members of the Supreme Court that solidified the conservative majority needed to overturn Roe’s precedent of allowing women to access abortion services nationwide. Trump appointed Neil Gorsuch to fill the seat vacated with Antonin Scalia’s passing in February 2016. Barack Obama was president at that time, but then-Senate Majority Leader Mitch McConnell (R-KY) refused to conduct hearings for Obama’s appointee for Scalia’s vacant seat, Merrick Garland, arguing that it was improper for a President to appoint a Supreme Court justice during an election year. So, Scalia’s seat remained vacant until after the 2016 presidential election, which saw Donald Trump defeat Hillary Clinton.
Next, Anthony Kennedy decided to retire, allowing Trump to appoint his second SCOTUS [Supreme Court of the United States] judge. Trump nominated Brett Kavanaugh, someone further to the right ideologically than Kennedy, who was narrowly confirmed with a vote of 50–48. Given Kavanaugh’s ideological position relative to Kennedy’s, we saw a slight move to the right in the overall ideology of the Court. What solidified the Court’s rightward shift was the replacement of Justice Ruth Bader Ginsburg with Amy Coney Barrett.
Ruth Bader Ginsburg passed away on September 18, 2020, less than two months from the presidential election. McConnell quickly backtracked his statement regarding a President’s ability to nominate SCOTUS judges during an election year and vowed to confirm a Trump appointment before the election. Just eight days after Ginsburg’s passing, Trump announced he would nominate Amy Coney Barrett to fill the vacancy and 30 days later, the Senate confirmed the appointment with a 52–48 vote. This was just eight days prior to the election in which Joe Biden won the presidency and Democrats gained control of the Senate–this meant that Democrats would have been able to appoint a much more liberal justice to replace Ginsburg had the confirmation been held until after the election.
Barrett’s appointment to the Court solidified its rightward shift, as she is notably more conservative than the late Justice Ginsburg, one of the most liberal voices on the Court during her tenure.
Is The Electoral College To Blame?
So, at this point it should be clear that between the appointments made by Bush and Trump, SCOTUS went from a fairly moderate body to one that is solidly conservative. What is less clear is how this all relates to the need to reform the Electoral College. The Electoral College has allowed for these two minoritarian presidents (by which I mean presidents elected without the support of even a plurality of voters) to appoint a majority of the justices on the Supreme Court. This means, of course, that the Supreme Court is driven by an ideology that is out of step with many American voters.
How do we know this?
Because polling makes it clear. Americans consistently express support for a woman’s right to seek out abortion services if she so chooses. Admittedly, many Americans hold nuanced feelings on this topic: they tend to personally dislike abortion, but are also very much opposed to the government regulating–or worse, restricting–access to abortion services.
The latest report from Pew Research Center shows that 62 percent of Americans want abortion to be legal in all or most cases, with 57 percent disapproving of the Dobbs decision. This same report highlights that this difference is largely partisan, with 82 percent of Democrats opposing the Court’s ruling while 70 percent of Republicans approve of it. However, this does signal slightly more division in the Republican Party than among Democrats.
This can also be seen in now-Senate Minority Leader McConnell’s response when asked about the details of Graham’s proposed bill: “you’ll have to ask him about it.” After the Dobbs ruling came down, McConnell said Senate Republicans were unlikely to pursue a national ban and leave it to the individual states to decide how they want to handle the issue of abortion. McConnell, as Minority Leader, knows the danger of taking this type of controversial stand during an election year (Graham notably announced this bill less than two months from the 2022 midterm elections).
Just this August, Kansas, a reliably Red state in the Electoral College held a statewide referendum on implementing an abortion ban which failed with a 59–41 vote, an unquestionable defeat. There is also the fact that voter registration numbers have spiked–especially among women–since the Dobbs decision was issued. This was seen in Kansas prior to the defeat of their abortion referendum, so these record registration numbers signal trouble for Republicans who want to double down on Dobbs.
Much of this could have been avoided if the Electoral College had not awarded the presidency to presidents who failed to win the popular vote. By electing presidents who are not aligned with the national will, we see justices appointed to the Supreme Court that are also not reflective of the national mood. While justices are not at all required to follow public opinion on various issues, research tells us that public opinion does indeed influence SCOTUS judges through the presidents that place them on the bench.
So, as long as the Electoral College exists we run the risk of continuing to see minoritarian presidents be able to appoint SCOTUS judges not in line with public opinion. This of course has the ability to create backlash at the polls (i.e. a major electoral loss like we saw in Kansas); however this is likely a short-term effect.
A bigger problem, and likely a long-term effect, is that these types of judicial opinions undercut the legitimacy of the Supreme Court, the bedrock of their enforcement power. The Electoral College, therefore, is liable for many more issues than just picking a “wrong” presidential winner from time-to-time. It has the potential to completely undermine legitimacy and trust in our federal judiciary. We, therefore, ought to think hard about reforming this archaic–and outdated–institution.
