Roe v. Wade Is About to Be Struck Down by the Electoral College

Four of the justices voting to overturn Roe were appointed by presidents initially elected while losing the popular vote.

WASHINGTON, DC - APRIL 23: Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Photo by Erin Schaff-Pool/Getty Images)
Justices of the U.S. Supreme Court in Washington, D.C., on April 23, 2021. Photo: Erin Schaff-Pool/Getty Images

Roe v. Wade, the 1973 Supreme Court case that established a constitutional right to abortion, was decided 7-2.

According to Politico, the Supreme Court will soon strike down Roe v. Wade on a 5-4 vote.

While the U.S. right has organized for decades in hopes of this result, it would never have come close to success without one factor: the Electoral College. There have been eight presidential elections over the past 30 years, and also eight Supreme Court vacancies. The bizarre reality of the U.S. political system is that Republicans have won the popular vote in just one of the eight elections, but got to choose five of the eight new justices. Of these five GOP picks, four are reportedly voting to reverse Roe.

In an alternate history in which presidents were elected by a simple plurality of voters, Roe would likely soon be upheld in the relevant case, Dobbs v. Jackson Women’s Health Organization, by a 7-2 or even 8-1 margin — assuming that the court even heard Dobbs in the first place.

Here are the details of this history:

Politico’s article features a draft opinion striking down Roe, which was written by Justice Samuel Alito. Politico also reports that Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett will vote with Alito.

Gorsuch, Kavanaugh, and Barrett were appointed by President Donald Trump. In 2016, Trump won the Electoral College 304-227, thanks to extremely narrow victories in key states. Yet Trump got just 46.1 percent of the popular vote, while Hillary Clinton received 48.2 percent. In numerical terms, 65.854 million Americans voted for Clinton, while 62.985 million voted for Trump — an almost 3 million margin for Clinton.

Moreover, voter turnout in 2016 was, by one way of measuring it, 59.2 percent. This means that just 27.3 percent of eligible voters chose Trump. Yet he was able to pick a third of the current Supreme Court. (And, of course, there were three vacancies for Trump rather than two because then-Senate Majority Leader Mitch McConnell of Kentucky refused to even allow a vote for the vacancy when Antonin Scalia died in 2016, during Barack Obama’s presidency.)

Then there’s Alito, who was nominated by George W. Bush in 2005. Officially, Bush won the Electoral College against then-Vice President Al Gore in 2000 by a margin of 271-266. In reality, a study of Florida ballots released in November 2001 found that Gore actually won the state, under any counting standard, and thus actually won the Electoral College vote. But since this was just after the 9/11 terrorist attacks, no one dared bring it up.

Gore also won the popular vote, 48.4 percent to 47.9 percent. Over half a million more Americans voted for Gore than Bush. Voter turnout in 2000 was 54.3 percent, meaning Bush was the choice of 26.0 percent of eligible voters.

It is true that Bush won both the Electoral College and the popular vote against John Kerry in 2004. However, it’s extremely unlikely that Bush would have run again if he’d lost in 2000. The last time a president got his party’s nomination, lost, and then got the nomination again and won, was Richard Nixon 54 years ago in 1968. Perhaps another Republican would have beaten Gore in 2004, or perhaps not.

The remaining justice apparently poised to strike down Roe is Thomas, who was appointed by George H.W. Bush. Bush won both the Electoral College and popular vote in 1988.

Of course, it’s impossible to know precisely how history would have played out if the United States had a system in which the candidate who got the most votes became president. But polls show that overturning Roe has been deeply unpopular for as long as the question’s been asked. So if the composition of the Supreme Court reflected anything close to the perspective of most Americans, this day would never have come. Now that it’s here, it’s hard to know whether the court will retain any legitimacy. The basic facts suggest that it should not.

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