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Are Unelected Judges to Replace ‘We the People?’

Activist groups assault the Supreme Court and representative democracy.
Erin Morrow Hawley
The Supreme Court finally abandoned the Lemon test in Kennedy v. Bremerton.

Upset about recent Supreme Court decisions, a new group of 100 activist organizations has banded together to declare war on the court itself. Launched in June 2023, the group, United for Democracy, has initiated a million-dollar campaign against the court. It also sent a letter to congressional leaders identifying various cases as threats to democracy and labeling the Supreme Court a broken institution. This new assault on the third branch of government fundamentally misunderstands the nature of our democracy—the criticized cases return to “We the People” the power to make the most fundamental decisions about our lives. And that is a win for every American.

Unsurprisingly, United for Democracy first targets Dobbs v. Jackson Women’s Health Organization. But that landmark decision returned the decision-making power related to abortion law to the people. It allowed the voters in Mississippi finally to have a say on their state’s abortion policy—and 52.5 percent of voters in Mississippi are women. In contrast, Roe v. Wade was the opposite. In the words of dissenting Justice Byron White, Roe was “an exercise of raw judicial power”—a power that took from the people and the democratic branches the ability to have a say in one of the most consequential social, moral, and ethical questions of our day.

The complaint about reproductive choice is also ironic coming as it does from groups that routinely oppose pregnancy care centers—centers that offer hundreds of millions of dollars’ worth of free resources, counseling, and medical services every year to women who need a little extra help. Many of these same activist groups go so far as to seek to take information away from women—fighting against informed consent laws and laws that tell women it may be possible for them to reverse a chemical abortion after the first drug is taken. All this while studies reveal that many women choose abortion because of their life circumstances. Offering women real choice means offering them tangible help through pregnancy and beyond—not pushing them to abort their unborn child.

United for Democracy also says that the Supreme Court has “made our air and water dirtier.” Not so. What the court did in a case called Sackett v. EPA was to restore to Congress the power to protect our air and water. The decision reminded the Environmental Protection Agency that its limited prerogative was to execute the law that Congress had enacted, not ignore it in favor of the Biden administration’s own policy preferences.

In a similar ruling, the Supreme Court reinforced clear separation of powers principles when it rejected President Biden’s unilateral attempt to cancel some $430 billion worth of student loan debt. The question, as the court explained, wasn’t whether something should be done about student debt, but rather who had the authority to do it. The Biden administration admitted that it could not unilaterally cancel debt and thus sought to tie its program to a congressional statute, the Heroes Act. There were several problems. First, the statute authorized only waiver and modification of loan conditions, not a wholesale rewriting of the statute to forgive nearly half a trillion dollars’ worth of debt. Further, Congress had spoken to the issue—passing legislation disapproving of the loan cancellation program. 

Finally, United for Democracy criticizes the Supreme Court’s recent decision defending free speech, 303 Creative v. Elenis. But that decision is a landmark victory for free-speech rights. As the court wrote, “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.” 303 Creative is another case that reins in government overreach. It forbids government from forcing individuals to say things they do not believe and protects the LGBT website designer just as it protects religious website designers like Lorie Smith. 

Without a touch of irony, United for Democracy claims that each of these decisions damaged American democracy. Nothing could be further from the truth. The Supreme Court instead returned to the American people and our elected representatives the power to influence the laws by which we are governed. This is not a broken Supreme Court but a Supreme Court at its best, policing the boundaries of liberty in pursuit of our American project of self-government. 

In fact, United for Democracy’s view of the Supreme Court is decidedly undemocratic. According to the group, it is up to the third branch to ensure we “make a good living,” “breathe clean air and drink clean water,” “walk through our communities without the fear of gun violence,” “make our own health care decisions,” and know “our kids will learn and grow at school.” But this clarion call to the Supreme Court to decide the most important policy questions of our day is one that would make democracy fade away. Such a court would represent rule by a majority of justices—unelected and unaccountable by design—who would make the complex, varied, and important decisions by which we are governed. So much for Congress. So much for the Constitution. And so much for representative democracy.

As Judge Benjamin Cardozo famously said, the judge “is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness.” The grand design of our Constitution is that all of us as American citizens are tasked with the high calling of governing ourselves. 

Erin Hawley, Senior Counsel, Vice President of Center for Life & Regulatory Practice
Erin Morrow Hawley
Senior Counsel, Vice President of Center for Life & Regulatory Practice
Erin Morrow Hawley serves as senior counsel and vice president of the Center for Life and Regulatory Practice at Alliance Defending Freedom.