Yes, I’m still angry about the leaked draft opinion from the Supreme Court that points to a decision by the Court to overturn Roe v. Wade with respect to legal abortions in the United States. That decision is likely to be supported by all of the conservative justices in either a 6-3 decision or, if Chief Justice John Roberts decides to vote against making abortions illegal, by a 5-4 decision.
As you think about the ramifications of this decision, it is worth remembering something. The office of the President of the United States is the only political office in the land that is not decided by the popular vote. The vehicle that determines who wins a presidential election is the Electoral College, an antiquated and antidemocratic part of the U.S. Constitution.
The Electoral College was created for two reasons. The first purpose was to create a buffer between the population and the selection of a president. The Founding Fathers were afraid of direct elections to the presidency. They feared a tyrant could manipulate public opinion and come to power. They believed that the electors would be able to ensure that only a qualified person becomes president. They thought that, with the Electoral College, no one would be able to manipulate the citizenry. I guess they weren’t prescient enough to envision Donald Trump.
The second reason for the Electoral College came from a compromises made at the constitutional convention to satisfy the small states. Under the system, each state had the same number of electoral votes as they have a representative in Congress, which is determined by each state’s populations. Thus no state could have less than three (aligned with two senators and one representative).
The result of this system in today’s real world is that state of Wyoming, for example, cast about 210,000 votes in the 2016 presidential election, and thus each elector represented 70,000 votes. In California, approximately 9,700,000 votes were cast for 54 votes, thus representing 179,000 votes per electorate. This creates an unfair advantage to voters in the small states whose votes count more than those people living in medium and large states. And this is good for Republicans, since many of the so-called red states are the smaller states.
The ramifications of this crazy system is that a presidential candidate can win the popular vote, but still lose the presidency by losing the Electoral College. And that has happened four times in American history and twice this century alone. In 2000, Al Gore won the popular vote, but George W. Bush won the Electoral College. In 2016, Hillary Clinton won the popular vote, but Donald Trump won the Electoral College.
So what does this have to do with the Supreme Court and overturning Roe v. Wade? Well, if the presidency was decided by the popular vote, Samuel Alito, John Roberts, Neil Gorsuch, Brett Kavanaugh, and Amy Coney-Barrett would not be justices on the Supreme Court. Alito and Roberts were appointed by Bush. Gorsuch, Kavanaugh, and Coney-Barrett were appointed by Trump, neither of whom won the popular vote.
But abortion is just one of many areas where constitutional law appears ready to change dramatically. In the next few months, the Supreme Court is likely to decide cases expanding gun rights, lessening the restrictions on prayer in public schools, prohibiting affirmative action by colleges and universities, and enshrining the right of people to use religion as a basis for discriminating against gays and lesbians in business dealings and employment. And with its far right majority on the Court, thanks largely to two men who became president without winning the popular vote, the United States is rapidly being transformed into a gun-rotting, white conservative Christian theocracy.