Melissa Murray (New York University School of Law) and Katherine Shaw (University of Pennsylvania Carey Law School) have posted The Promise and Peril of Direct Democracy After Dobbs (Virginia Law Review, Vol. 112, p. 1, 2026) on SSRN. Here is the abstract:
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court announced that it was leaving the power to regulate abortion “to the people and their elected representatives.” In the wake of Dobbs, state-level “elected representatives” quickly got to work, resulting in dramatic changes to the abortion access landscape. But increasingly, “the people” have also sought to shape the law directly. Many of those initiatives have preserved or expanded access to abortion, demonstrating the potential for direct democracy to counteract troubling facets of the current landscape. In the face of increasingly minoritarian institutions and some courts’ abandonment of their traditional rights-protecting functions, direct democracy seems full of promise.
As this Article reminds, however, direct democracy has a checkered past, which must inform any evaluation of its current potential. For as much as direct democracy has been used to achieve progressive ends, it has also been used to limit minority rights. Indeed, over the last sixty years, those seeking to counteract the gains of the Civil Rights Movement have repeatedly turned to direct democracy to do so. This Article reviews that history, which spans issues ranging from affirmative action to same-sex marriage, and mines it for lessons for today.
Several insights emerge from this historical excavation. First, there is scant reason to believe that direct democracy will reliably protect the interests of unpopular or historically subordinated groups. But a second insight is that the direct democracy of today differs in critical ways from the direct democracy of even fifty years ago, in part because of the deteriorating health of democratic institutions and the upending of a constitutional order that once gave relatively robust protection to equality-related rights.
Building on these insights, this Article maintains that both the promise and peril of direct democracy must be evaluated in the context of the broader constitutional and democratic landscape. Direct democracy has come to the fore at a moment when the foundations of judicial enforcement of fundamental rights and equal protection are being reexamined, and its success in securing abortion rights represents an important countercurrent to these developments. But meaningfully, this dynamic landscape may contain the groundwork for reexamining—and perhaps reorganizing—the existing equal protection framework.
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