Don't Blame The Electoral College for The End of Roe v. Wade | Opinion

A group of radicals has seized on the U.S. Supreme Court's recent decision overturning Roe v. Wade as an excuse to upend our political system. These fearmongering activists hope to persuade the public that the decision is illegitimate because several of the Justices who signed the majority opinion were nominated by presidents who did not win the most popular votes in their elections, and that therefore the Electoral College must go.

To cite just two examples, a recent headline in The New Republic claimed "Women Wouldn't Lose Their Right To Choose If We Elected Presidents By Popular Vote" while an article in The American Prospect stated that "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."

While Save Our States, the leading organization in the country defending the Electoral College, does not take a position on Roe and whether it should have been upheld or overruled, we do have thoughts on the irrational and simplistic idea that the Electoral College's existence and operation is what led to the recent decision.

For starters, the argument ignores that Justice Samuel Alito was appointed by President George W. Bush after the latter won reelection in 2004, carrying both the Electoral College and the mythical national popular vote (the same is true of Chief Justice John Roberts, who would have dramatically scaled back Roe rather than outright overturning it).

The argument also assumes that the popular vote results would have been the same if elections were run under a dramatically different set of rules, such as the National Popular Vote interstate compact. But it's impossible to know whether this is true—Hillary Clinton and Donald Trump both would surely have campaigned differently in 2016 under any sort of popular vote scheme, and it's far from certain that Clinton comes out on top in this foray into alternative history.

U.S. Supreme Court
WASHINGTON, DC - JULY 28: Two civilians walk past the fenced off United States Supreme Court building July 28, 2022 in Washington, DC. The building has been the site for numerous demonstrations and protests since the U.S. Supreme Court decision to end federal abortion rights protections on Saturday, Jul. 9, 2022. Robert Nickelsberg/Getty Images

It also ignores that any number of notable changes in our political order could have saved Roe—or caused it to be overturned much earlier.

While we're imagining alternate universes, consider one where the Democrats use a different nomination process in 2008, leading to Hillary Clinton being nominated and then defeating John McCain. This would then allow her to nominate not just replacements for Justices John Paul Stevens and David Souter but quite likely also for Ruth Bader Ginsberg, who reportedly wanted a woman president to nominate her replacement. In another alternate reality, perhaps Republicans adopt a litmus test for Supreme Court nominees immediately after Roe was decided in 1973, and by 1986 create a 5-4 anti-Roe majority on the Court (growing to 8-1 by the time Planned Parenthood v. Casey upheld Roe in 1992).

In the real world, 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. Justice John Marshall Harlan, author of the sole dissent in the abominable Plessy v. Ferguson decision, was nominated by President Rutherford B. Hayes, who won the Electoral College in 1876 but not the popular vote. Chief Justice Roger Taney, author of the even worse Dred Scott decision, was nominated by President Andrew Jackson, who won the Electoral College and popular vote in 1828 and 1832. It seems obvious which Justice's opinion was legitimate, and which was not, regardless of how many popular votes Hayes and Jackson received.

Ultimately the complaint amounts to highly selective and revisionist wishful thinking by opponents of the Electoral College. They seem to believe if only the rules in the presidential election process were different, their ideals would have prevailed. Perhaps, perhaps not. The only certainty we have is that a different set of rules—whether doing away with the Electoral College or some other change—would have dramatically altered presidential races and the Supreme Court appointment processes in ways that make the outcomes impossible to reliably predict.

These hypotheticals and "what ifs" are best left to writers of alternative history and Hollywood moviemakers. Critics of Supreme Court decisions—whether the recent overturning of Roe or anything else—would be wise to focus on this reality and stop suggesting the High Court's decision would have been different had we changed the way we elect our president.

Sean Parnell is senior legislative director for Save Our States.

The views expressed in this article are the writer's own.