The Supreme Court blew up last night.
And so did the midterm elections.
The unprecedented partisan leak of a draft Supreme Court decision – of a case that would overturn Roe v Wade – will destroy trust within and for the court, and gives Democrats a fighting chance to hold on to Congress in 2022 and the White House in 2024.
In a year when the nation is focused on rampant crime and runaway inflation – and the prospects of World War 3 – the subject just got changed. At least it did for a divided Democratic Party and suburban women – who determine the outcome in many congressional and presidential elections.
And the politicization of the Supreme Court is complete. Either in the liberal judges and clerks involved in leaking the memo or in the conservative judges and clerks who have seemingly moved quickly to advance an anti-abortion agenda.
If the memo is real, and if it ends up reflecting the judgment of the Supreme Court, it is a fulfillment of Democrat prophesies of gloom about Republican court nominees, and a deviation from the past practice of moderation and consensus on the court, and respect for precedent and seemingly settled law.
Roe v Wade, never a legally solid argument, has nonetheless been the law of the land for half a century. It relates to an issue that, at least on the extremes, is volatile and divisive.
But it also relates to an issue that, in the hearts of most Americans, isn’t lived on the extremes. The plurality – and sometimes majority – of Americans tend to dislike abortion and dislike abortion bans. It is a procedure they’d like to see less off – and which has been in steady decline for 30 years – but which is largely seen as a private matter that government should stay out of.
Asked to rank important issues, abortion doesn’t make the list for most Americans. The last four national Gallup polls had abortion as a top concern for less than one-half of one percent of respondents. That indicates a general acceptance for the status quo – which has been state-based regulation, with conservative states making abortion less available and liberal states making abortion more available.
But both parties ignore the middle on abortion, and use the issue as a wedge to drive activism and donations. There’s plenty of money, and sound and fury, in abortion.
And so the liberal states push legal abortion almost to the moment of live birth – literally cheering as such legislation is signed – and the conservative states create ever more hoops for those seeking an abortion to jump through. Maybe these actions are driven by principled belief, and maybe they are driven by political calculation.
But now they are front and center, and probably in the driver’s seat for the next election or two.
And the Supreme Court is broken.
It turns out John Roberts is no Earl Warren, and that the court’s past tendency to turn the nation slowly is no more. Brown v Board of Education was held over for two years, until the court was unanimous, and could speak with one voice on a matter of importance and controversy. That’s not the way this seems to have played out. It looks like – whether true or not – that as soon as the Republicans got enough votes on the court they delivered for the Bible belt. The timing makes it look like political opportunism, not deliberate judicial review. Disrespectful not just to the legislative will of Congress, but the half-century of Supreme Court respect for the earlier decision.
Yes, cases can and should be reversed. The court can get it horrifically wrong. And the court probably did get it wrong with Roe v Wade. The issue might actually not be whether or not there is an individual right to an abortion, but whether or not there is a governmental power to mandate or forbid a medical treatment or procedure. But either way, the Supreme Court – the last vestige of the federal government with a prospect for broad-based national respect – should not seem to be polluted by politics.
Activist judges are wrong, even if they are Republicans.
And when you’re climbing down a mountain, you try to avoid jumping off a cliff.
You don’t unravel 50 years of settled law in one fell swoop. You lead the nation and its thinking one step at a time.
At least that’s what the Supreme Court used to do.
If this decision is issued, the practical impact on abortion will be negligible. Those states which will ban abortion already essentially had. Those states which will champion abortion, likewise already had. The number of abortions in the United States will probably not be reduced any more than would have been presumably reduced by the pre-existing decline in the procedure.
So nothing will change, in terms of abortion.
But no justices will ever trust one another or staff again, or be able to go out in public without security.
The Supreme Court will lose whatever respect it retained.
And the Democrats will be in a much better position for the 2022 and 2024 elections.