The Supreme Court's Role in Shaping the Destiny of American Democracy

Nicole Hemmer, an associate professor of history and director of the Carolyn T. and Robert M. Rogers Center for the Study of the Presidency at Vanderbilt University, and author of "Partisans: The Conservative Revolutionaries Who Remade American Politics in the 1990s", points out that the Supreme Court has agreed to hear two cases that could significantly impact the 2024 elections. The first case, Fischer v. United States, may overturn numerous prosecutions related to the January 6, 2021 attack on the Capitol. The second case, Food and Drug Administration v. Alliance for Hippocratic Medicine, could make medication abortion unavailable nationwide, regardless of individual state laws. If the Court rules against the government in both cases, it could have far-reaching implications, erasing the government's efforts to hold insurrectionists accountable and rendering FDA approval of pharmaceuticals meaningless. These potential rulings would severely limit the core functions of the federal government.

Nicole Hemmer

Nicole Hemmer points out that in recent decades, the high court has generally been supportive of efforts to undermine democratic governance in the US. This can be seen in decisions such as Bush v. Gore, Shelby County v. Holder, and Citizens United, which have all had significant impacts on US politics. In recent years, this trend has only intensified.

It's crucial to consider the extensive history of this trajectory, particularly due to a certain kind of hopeful thinking that has been prevalent in anti-Trump circles since 2017. From the early days of President Donald Trump's presidency, Americans worried about his threat to democracy have reassured themselves with some form of "the courts will come to our rescue."

From the restraining orders that blocked the initial travel ban against individuals from Muslim-majority countries to the polls indicating that a conviction in one of his four trials would cost Trump re-election, many Americans have held onto the belief that the law will prevail where customary standards have fallen short. Politicians may deceive on the campaign trail without consequences, but under oath they are subject to the consequences of perjury.

Norms may have decayed, but the law remains steadfast, with established principles and a dedication to fairness. Despite numerous warnings from writers that the courts may not serve as the ultimate defense against illiberalism, the looming Trump trials as the 2024 election approaches have reignited the belief in the justice system as the deus ex machina that will rescue democracy.

Kate Cox, a 31-year-old mother of two from Dallas-Fort Worth, Texas, filed a lawsuit against the state of Texas on December 5, 2023, seeking an abortion due to a pregnancy that poses a threat to her life and future fertility. This decision comes after Cox learned last week that her fetus has full trisomy 18, a condition that means her pregnancy may not survive until birth, and if it does, her baby would likely be stillborn or live for only minutes, hours, or days. (Credit: Kate Cox/AFP via Getty Images)

The Kate Cox case highlights the harshness of Texas abortion law. There is solid evidence to support these expectations. The Trump team's election cases were dismissed by judges and juries. In the two and a half years following the January 6 insurrection to October 2023, almost 600 individuals charged for the Capitol attack pleaded guilty, and over a hundred were convicted at trial. Prosecutions for seditious conspiracy proved that domestic terrorism could be effectively prosecuted as more than just isolated attacks, but as part of a larger movement that could be dismantled and neutralized.

Simultaneously, the Supreme Court's decision to take on these specific cases in the current political climate serves as a stark reminder of its actions and inactions since the start of the 21st century when it comes to elections and democracy. These cases go beyond just abortion and January 6, as they raise questions about how the government operates and protects democratic functions and basic rights. Despite hopes that the law can remedy where norms have failed, there's no guarantee that the courts will come to our rescue. In fact, they might make it even more challenging for us to save ourselves.

While the stakes of these cases may appear disconnected, the efforts to disrupt the electoral count and the FDA's approval of the abortion pill mifepristone both highlight the fragility of liberal democracy. They also underscore the courts' role in advancing illiberalism in the United States rather than safeguarding democratic governance.

Take for example the Fischer case, which is related to the events of January 6. This case asks the Supreme Court to dismiss convictions that are based on obstruction of official proceedings, a charge that has been central in the numerous prosecutions linked to the attack on the Capitol. Even Trump himself is facing potential prosecution under this statute as part of one of his upcoming trials.

Sgt. Aquilino Gonell of the U.S. Capitol Police becomes visibly emotional while giving testimony to the House Select Committee investigating the January 6 attack on Capitol Hill in Washington, D.C. on July 27, 2021. (Photo: Oliver Contreras/Pool via REUTERS)

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Officer injured on Jan. 6 reacts to GOP conspiracies

These prosecutions have been a fundamental part of the government's response to the insurrection, and it is crucial that a vast majority of Republican officials refuse to denounce, investigate, or even acknowledge the violent assault on Congress. The extensive use of the statute, often one of many charges against January 6 defendants, has not only provided consequences for involvement in the attack but has also shown that large-scale prosecutions against domestic terrorism can be successful in court - an approach that prosecutors had shied away from for decades after failed seditious conspiracy cases in the 1970s and 1980s. If the Court were to overturn these prosecutions based on an unusually narrow and biased reading of the statute, it would not only be a blow to the January 6 cases but also to the willingness of prosecutors to attempt this type of broad conspiracy prosecution.

The mifepristone case likewise poses a significant threat to basic rights in the United States. The logic of the Dobbs decision, supported by the majority opinion and Republican legislators, was that Dobbs did not outlaw abortion, but rather returned the decision about abortion legality to the states, and thus to the people. This premise, presented as an effort to extend democratic decision-making, has proven to be false in the year and a half since Dobbs was handed down. While a ruling that effectively ended medication abortion for an extended period of time would almost certainly help Democrats in the 2024 elections, it would endanger the life and health of hundreds of thousands of pregnant Americans.

Abortion access drives large numbers of voters to protect reproductive health care whenever it's on the ballot. Republican legislators respond by trying to block or overturn the will of the people, whether by nullifying elections, preventing further ballot initiatives, or making it harder to amend state constitutions. Former Republican senator Rick Santorum summed up his party's antidemocratic stance after an Ohio referendum enshrined abortion rights in the state's constitution: "Thank goodness that most of the states in this country don't allow you to put everything on the ballot because pure democracies are not the way to run a country."

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He is partially correct that basic rights should not be subject to a vote, but rather protected by the Constitution and the courts. Yet, these rights are on the ballot because the courts have withdrawn their protection. This has allowed lower courts to limit fundamental rights to bodily autonomy, as seen in the case of Kate Cox in Texas. The Texas court ruled against her access to an abortion, and the state's attorney general threatened hospitals with prosecution if they provided the necessary procedure. This calls into question the role of the courts as defenders of democracy.

While courts have been instrumental in holding officials accountable since Trump's election, they are also leading the shift towards illiberalism in the United States. This includes attacks on voting rights and reproductive autonomy, not just from the Supreme Court, but also from a network of legal professionals. It is crucial to not only anticipate potential victories in the near future, but also recognize that institutions alone cannot save democracy, and in many cases are actively undermining it. As we approach 2024, this is a crucial reality to keep in mind.