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The Electoral College did not end Roe v. Wade
Sean Parnell • Jun 28, 2022

The Supreme Court’s decision striking down the landmark Roe v. Wade decision has sparked a political and social firestorm, with many sharply criticizing the court’s decision while others praise it. Save Our States does not work on, or take positions about, those issues. But some critics of the Court’s decision have sought to place blame for it on the Electoral College, and on that Save Our States does have a view.

Here, for example, was a headline from The New Republic shortly after an early version of the opinion was leaked:

Women Wouldn’t Lose Their Right to Choose If We Elected Presidents by Popular Vote

An article in The American Prospect around the same time spelled out the charge in more detail:

The Court’s anti-Roe ruling, provisional until it is officially promulgated, is the result of a minority faction’s ability to win elections and govern. Four of the five justices who’ve signed on to the Roe repeal were appointed by Republican presidents who received fewer popular votes than their Democratic opponents: Sam Alito, appointed by George W. Bush, who lost the 2000 popular vote to Al Gore; and Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, appointed by Donald Trump, who lost the 2016 popular vote to Hillary Clinton…

Like a number of criticisms of the Electoral College, there’s some surface appeal and plausibility to this claim, but spending a little more time reveals gaping holes in the argument.

For starters, it ignores that Justice Samuel Alito and Chief Justice John Roberts (not mentioned in the article because it was unclear at the time how he would vote in the decision, though his concurrence likely counts him as an “anti-Roe” justice in the eyes of those dismayed by the outcome) were both appointed by President Bush after he won re-election in 2004, winning both the Electoral College and the mythical national popular vote. The supposed justification to include Alito and Roberts among the justices who “were appointed by Republican presidents who received fewer popular votes than their Democratic opponents,” is that Bush might not have been elected in 2004 unless he was already in the Oval Office, but without a real-world America Chavez we don’t have access to the alternate universe where Gore won in 2000 and then defeated Bush in a rematch in 2004. All we know is that George W. Bush received the most popular votes in November 2004 as well as the Electoral College, the latter giving him the authority to nominate Alito and Roberts in 2005.

The argument also assumes that the popular vote result would have been the same if the election had been run under a dramatically different set of rules, such as the National Popular Vote interstate compact (NPV). Even the compact’s creators and lobbyists will explain that there’s no particular reason to believe this – Hillary Clinton and Donald Trump both would surely have campaigned differently in 2016, and it’s far from certain that Clinton comes out on top with both candidates running different campaigns.

And if we’re going to spin up hypothetical processes that might have led to a different electoral outcome, why stop at the Electoral College? What if, for example, the Democratic Party used a national primary in 2008 to select its nominee rather than a state-by-state process? It seems likely that Hillary Clinton would have been the nominee that year (and in fact she won the popular vote in the state-by-state nominating process as well). If Clinton had then beaten John McCain (likely in my view, but who really knows?) she would have not only been there to appoint replacements for Justices David Souter and John Paul Stevens (as Obama did) but also probably replaced Ruth Bader Ginsburg, who reportedly stayed on the Court past the 2016 election in the hope and expectation that a woman president would nominate her successor.

Does that mean it’s really the Democratic Party’s failure to have a single national primary to determine its 2008 presidential nominee that ended Roe? That seems like a stretch too. And I could spin additional alternative histories that would affect this issue, such as: what if state legislatures still appointed U.S. Senators – would U.S Senator Sandra Day O’Connor (who served as Republican Majority Leader in the Arizona Senate before becoming a judge) be voting in 1987 with a majority of her colleagues to confirm Robert Bork to the Supreme Court, creating an anti-Roe majority for 1992’s Casey decision? What if there were term limits on Supreme Court justices – is President Barrack Obama nominating a replacement for Clarence Thomas in July of 2009 after his 18-year term is up, and likewise replacing Ginsburg in 2011? Interesting alternate histories, to be sure, with just about as much basis in reality as the current complaints about the Electoral College.

More importantly, the legitimacy of Supreme Court justices and their decisions don’t rest on whether the presidents who nominated them received a plurality of the popular vote on the way to winning the Electoral College. Justice John Marshall Harlan, author of the sole dissent in the abominable Plessy v. Ferguson decision, was nominated by President Rutherford B. Hayes, who of course won the Electoral College in 1876 while Samuel Tilden appears to have received more popular votes (aided by suppression of black and Republican voters in the South). Chief Justice Roger Taney, author of the even worse Dred Scott decision, was nominated by President Andrew Jackson, who won both the Electoral College and the popular vote in 1828 (the first presidential election in which there even was something that might reasonably be called a national popular vote – in 1824 there was no popular vote for presidential electors in six of twenty-four states, including the most populous state of New York).

Anybody want to argue against the legitimacy of Harlan’s vote in Plessy v. Ferguson or for the legitimacy of Taney’s opinion in Dred Scott as a result of the number of popular votes cast for the presidents who nominated them? Probably not.

Ultimately, the complaints about the supposed role of the Electoral College on the present makeup of the Supreme Court amount to highly selective wishful thinking – if only the rules at some point in the process were different, then my side would have prevailed! Perhaps. But the rules were the rules, and the only certainty is that a different set of rules – whether NPV, or different nominating processes by the Democratic Party, or some other changes – would surely have altered the presidential races and Supreme Court appointment processes in fundamental ways that make it impossible to reliably predict the outcome.

It is highly speculative to assume that getting rid of the Electoral College, either directly through a Constitutional Amendment or indirectly through NPV, would produce a Supreme Court lineup more sympathetic to Roe. Critics of the decision would be better off aiming their fire elsewhere and ignoring the hypotheticals spun out by opponents of the Electoral College.