Today’s Edition: The tipping point.

December 2, 2021

          During argument before the Supreme Court on Wednesday over Mississippi’s restrictive abortion law, it became clear that the reactionary majority of the Court will abrogate the constitutional right of women to control their reproductive choices. The precise contours of how and when the Court will abolish the rights recognized in Roe v. Wade are unknown, but the outcome is certain. Legal observers suggest that the Court may dispense with pretense and abolish the constitutional right to abortion entirely in the case now before the Court.

          There is much to discuss about the legal implications of the Court’s predetermined decision to overrule Roe v. Wade, but the more important issue is how Democrats will respond to the decision. The politically and religiously motivated result will leave many in anger, dismay, and disillusionment. Those feelings are understandable and deserve to be expressed and heard.

          But make no mistake, this is a setback only, not a defeat.

          Republicans plotted for a half a century to overturn Roe v. Wade. They created a legal society of conservative lawyers whose sole purpose was to churn out conservative judges who would chip away at the constitutional right to abortion. Republican candidates for president uniformly vowed to nominate justices for the Supreme Court only if they agreed to overrule Roe v. Wade. Republicans changed the size of the Court from nine to eight and then back to nine based on the whim of one man—Mitch McConnell—to ensure that Trump was able to appoint two illegitimate justices to the Court. They nominated and confirmed a justice one week before a presidential election, breaking all norms for judicial nominations and in violation of the special rule created by Mitch McConnell only four years earlier. Trump’s Supreme Court nominees lied to individual Senators and the Senate Judiciary Committee when questioned about their views of Roe v. Wade. And, finally, Republicans are willing to forever destroy the legitimacy of the Supreme Court by bending to the will of a religious minority.

          The shameful Republican campaign to overturn Roe v. Wade was based on deceit, betrayal, and dark money. There is nothing in what Republicans have done that is worthy of emulation—except for their single-minded focus for a half a century on achieving their objective. If they can do that, we can, too. But we can do so better, and faster. Congress can pass legislation setting uniform standards regarding the availability of abortions. And Democrats can enlarge the Court to break the stranglehold of the reactionary supermajority created by the appointment of three justices who lied to Congress about their intentions.

          But everything that Democrats can do is dependent on retaining control of the House, expanding the margin of control in the Senate, and retaining control of the presidency. The imminent abrogation of a settled constitutional right should be enough to shake Democrats out of their “business as usual slumber” that seems to have becalmed the fervor that defeated Trump and flipped the Senate in 2020.

          The demise of Roe v. Wade should be enough to mobilize millions of young voters whose most personal reproductive decisions will be controlled by religious zealots in state legislatures. But if it is not, there is a somber reality that we must accept: It will get worse. Much. The unbounded reactionary majority on the Court will not stop until it has turned back the clock on civil rights and civil liberties by a century. Any claim of infringement of religion—no matter how attenuated or frivolous—will be sufficient to overturn state and federal legislation. Regulation of firearms will become constitutionally impermissible. And a bedrock judicial principle that is the basis of every civil right protected by the Court of over the last seventy years in in danger. If it falls—and it might—then decisions guaranteeing the right to equal education, to purchase contraception, and to marry someone of a different race or of the same sex are all at risk.

          In the past, my calls for increasing the size of the Court have been widely criticized by readers who fear that it will undermine the legitimacy of the Court. It is far too late for that. The ostensible subject of Wednesday’s hearing was whether there are any constraints on the ability of states to control women’s reproductive choices. But the true subject of the hearing was the legitimacy of the Court. Put simply, the hearing raised the question of whether the Court is a political institution or a judicial institution. Republicans have decided that it is nothing more than an extension of the Senate—a legislature in robes whose rulings can be changed by swapping Justices. By overruling Roe v. Wade, the Court will prove the GOP’s point: the Court is an adjunct to the Senate, not a co-equal branch of government.

          Justice Sotomayor pointedly described the threat to the Court’s legitimacy posed by its intention to overrule Roe v. Wade. Justice Sotomayor asked,  

          Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don't see how it is possible.

          The Washington Post Editorial Board agreed, writing (after oral argument was heard),

          The justices should have no illusions: A partial or total reversal of Roe would devastate not only the Americans who rely on the abortion rights that have been theirs for nearly 50 years, but also the court itself, undermining its legitimacy.

          As noted above, the details of how and when the Court overrules Roe v. Wade are unknown. The details of the outcome will turn on judicial doctrines relating to deference to precedent (“stare decisis”), whether the Court believes that a right to privacy exists in the Constitution, and whether John Roberts has any remaining relevancy as Chief Justice. For excellent summaries of the legal complications, see Ian Milhiser in Vox, “It sure sounds like Roe v. Wade is doomed,” and Ruth Marcus, Supreme Court ponders not whether to overturn Roe v. Wade — but how.”

          Legal complications aside, a question by Justice Kavanaugh laid bare the true intentions of the reactionary majority. Kavanaugh suggested that the “core problem” is that the Court has been forced “to pick sides on the most contentious social debate in American life” where “the Constitution is neutral.” In a single statement, Kavanaugh demoted a constitutional right he described to the Senate as “settled-precedent” to a mere “contentious social debate.”

          Democrats should stop pretending that the Court has any remaining legitimacy. The reactionary Justices have dropped that pretense, so there is no reason for us to maintain the fiction. If we recognize that the Court as an adjunct to the Senate, our path forward is clear. The only question is whether we have the guts to take that path. Spoiler alert: We do.

Concluding Thoughts.

          On a day of difficult news, it can be challenging to articulate an optimistic view of the future. But today, it is not difficult at all. We have seen this day coming for decades. Some dithered as others sounded the alarm, unable to believe the Court would really take the reactionary step of overruling Roe v. Wade. That false hope has evaporated and all excuses for dithering have vanished. A new urgency will arise as Americans living in twenty-six states experience abortion bans in 2022. The will of a small religious minority in America is about to be imposed on a strong majority of Americans who support the constitutional rights recognized in Roe v. Wade. That is an untenable situation that will finally awaken and motivate complacent Democrats and Independents to resist the authoritarian drift of the GOP.

          The impact of the overturning of Roe v. Wade will be felt most acutely by younger voters. Abortion bans will likely be accompanied by restrictions on contraception. Younger voters will finally realize that voting matters. But we must help them realize that a freight train is coming their way and assist them in registering to vote. If we do that, Democrats will win in 2022 and 2024. Approximately 4 million new voters turn 18 each year. That’s 16 million new voters in 2024. But we need to register those voters.

          Case in point: Arizona will likely impose an abortion ban in 2022 (indeed, the ban may be automatic given existing laws in Arizona that are not being enforced). A recent report by The Civics Center shows that less than 15% of 18-year-olds in Arizona’s most populous counties are registered to vote. See Civics Center, “Research Report: In Arizona’s two largest counties, fewer than 15% of 18-year-olds are registered to vote.” But in 2020, of those 18-year-olds who were registered, turnout was very high. For 18-to-24-year-olds, the turnout in Arizona was 88%!

           So, if the reactionary majority is about to crush the civil liberties of younger voters and there are tens of millions of younger voters who are not registered, the obvious path to victory is registering younger voters. We can do that. All of the problems posed by the reactionary majority can be corrected by an energized electorate that shows up at the polls. We can do that.

          Republicans have achieved a long-sought victory. It is their high-water mark. By imposing the views of a religious minority on all Americans, they have overreached and will mark the reversal of Roe v. Wade as the tipping point in their demise.

          In the meantime, you can call your congressional representatives and urge them to bring the Women’s Health Protection Act (S. 1975) to the Senate floor for a vote and to pass the Judiciary Act (S. 1141) to expand the Supreme Court. See Jessica Craven’s Chop Wood, Carry Water for help on contacting your congressional representatives and suggested talking points.

          Turn your anger and disappointment into action. If we do that, we cannot lose.

          Talk to you tomorrow!