Dobbs, Democracy, and Dysfunction

47 Pages Posted: 17 Aug 2022

See all articles by David Landau

David Landau

Florida State University - College of Law

Rosalind Dixon

University of New South Wales (UNSW) - Faculty of Law & Justice

Date Written: August 9, 2022

Abstract

Few recent decisions of the Supreme Court have received as much popular attention as Dobbs v. Jackson Women’s Health. Yet the scholarly evaluation of the decision is just beginning. In this essay, we focus on one important aspect of the Dobbs decision: its emphatic claim to be returning questions of abortion access to “the people,” or to democracy. Dobb’s invocation of democracy has obvious intuitive appeal, but it is a deeply problematic claim. It ignores systemic distortions in state legislatures caused by gerrymandering and other factors. And more specifically in the abortion context, it overlooks the very old laws that pre-date Roe and Roe/Casey-era “messaging” bills never thought likely to go into effect, both of which Dobbs has revived across the country. These laws, which often instantiate draconian bans on abortion access, are dubious measures of contemporary public opinion, but they may end up remaining in effect for a long time because of what we call burdens of inertia and blind spots in state legislative processes. Given these intertwined dysfunctions, Dobbs is far from a pro-democratic decision. Such a claim would be more plausible if (a) issued in a context where the Court was also taking the sources of democratic dysfunction, such as partisan gerrymandering, seriously, and (b) issued in a way that showed sensitivity to the distortions in the democratic process surrounding abortion, many of which were caused by the Court’s own interventions. As well, since the dysfunctions identified on the abortion issue are difficult to eliminate, a decision that took democracy seriously may have required the Court to continue to oversee abortion regulation nationwide with a regime similar to its current approach in Casey. The hollowness of the celebratory reference to democracy in Dobbs raises the question of whether it was sincere, or instead a cynical fig leaf that threatens to further erode the significance of U.S. democracy.

Keywords: abortion, Dobbs, Roe, Casey, John Hart Ely, political process theory, democracy, Supreme Court

JEL Classification: K36, K30

Suggested Citation

Landau, David and Dixon, Rosalind, Dobbs, Democracy, and Dysfunction (August 9, 2022). FSU College of Law, Public Law Research Paper , Available at SSRN: https://ssrn.com/abstract=4185324 or http://dx.doi.org/10.2139/ssrn.4185324

David Landau (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

Rosalind Dixon

University of New South Wales (UNSW) - Faculty of Law & Justice ( email )

Kensington, New South Wales 2052
Australia

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