The Supreme Court leak and the looming prospect of an end to Roe V. Wade might galvanize progressive voters in time for November.
While the nation processes the first leak of its kind, activists on both sides of the abortion rights debate have been ramping up for a bruising metaphorical fight in the courts and at the ballot box.
Pro-choice advocates have taken to the streets from Seattle to L.A. to Washington D.C. to express their displeasure and disgust at the news- broken this week by Politico via an anonymous leak- that the Supreme Court is on course to overturn the landmark legal ruling which made abortion legal in all 50 states of the U.S.
The chattering political classes, along with a few members of the media, have been righteously pontificating on the inappropriateness of the leak. Never before has an opinion of the court been leaked to the press before being formalized and released.
Roughly half of the electorate has cheered the news that at least one of a very tiny handful of individuals employed by the court privy to such information cared enough about the issue to leak the news before it was finalized. The other half, and perhaps a few more, are appalled that such a blatantly politicized act could have shaken an edifice heretofore by most considered to maintain some vestige of impartiality.
Some are of the opinion that the court has already become politicized, this leaker clearly foremost among them.
The news that the court plans to overturn Roe V. Wade, and kick the decision whether or not to allow abortion back to state and local courts, has ignited many in the Democratic Party base, in particular young voters.
Pundits are already speculating that this fight, and the Democratic Party’s commitment to it, will galvanize the progressive base, which has been floundering in a sea of more moderate Democrats determined to check the more extreme policy impulses of the party’s left flank.
Setbacks with Build Back Better and other legislative priorities have disheartened plenty of progressives anxious that playing to the party middle is wasting a valuable opportunity during which Democrats control the House, Senate and Executive branches.
Many are encouraging President Joe Biden to try the phone and pen approach favored by his predecessor Barack Obama. Governing by executive order has its drawbacks, however, one of which is the ease a future U.S. President would have undoing any such accomplishments.
What one president can do with a phone and a pen, another can undo with the same.
Legislation passed by the House and Senate and signed by the President into law are far more binding.
How much the looming prospect of an end to Roe V. Wade will impact the Democratic base is another question.
Young progressives are serious about abortion rights; other demographic groups who tend to be more religiously conservative are far less so.
The price people are paying at the grocery store and the gas pump are likely to have far more impact at the mid-terms, across a much wider subset of the Democratic Party base.
The purpose of this leak, besides making it impossible for the nation’s highest court to debate this sensitive topic in private, might not have been to sound the red alarm about the seriousness of voting at the mid-terms for any registered Democrats considering staying home in November.
Some in the nation’s media class, from the New York Times to the Washington Post to the LA Times, have been flagging in their duty to Democratic Party principles lately. Criticizing a President charged with digging a nation out from beneath a mountainous pandemic is one thing; some of the cheap shots taken at the president lately are quite another.
The very real prospect of the end of Roe may galvanize a press corp flagging under the weight of covering a presidential administration fairly in the post-Trump years.
The leak may also have been intended to prop up squishy Democrats.
Moderates concerned about appearing too progressive in the run-up to the mid-terms, with increases in inflation and crime being what they are, have been holding a hard line in the Senate and in the House, preventing progress on a number of issues deal to liberal hearts.
Besides the well-known obstruction antics of Sens. Manchin and Sinema, less vocal Democrats are hold-outs against everything from packing the Supreme Court to ending the filibuster and beyond.
Already, high-profile voices on the progressive left from Sen. Bernie Sanders to Rep. Alexandria Ocasio-Cortez are calling to pack the court by adding enough justices to give progressives the majority opinion on the court.
It would be difficult to do this without ending the filibuster, which the same authorities also advocate.
Once these two bastions of the constitution are gone, Democrats would be hard pressed to resist the temptation to go all the way to establishing a would-be permanent super-majority by abolishing the electoral college and adding two more liberal states in the form of Washington D.C. and Puerto Rico.
If that were to happen, voters in California and New York would do all the choosing at the federal level, with voters in middle outvoted by the more populous areas every time.
It is difficult to predict what might happen next.
Conservative states wouldn’t find much value in the energy policies of, say, California- a state with frequent power shortages and outages, which is closing its last nuclear power plant with no plans for how to replace the 20% of the state’s energy it provides.
No pendulum swings one way forever.
Democrats must consider what Republicans will do with these new powers and precedents, should they inherent them. Turnabout is fair play.
Republicans back in control of the House, Senate, Executive or all of the above might add as many new Supreme Court Justices as they like, swinging the court back towards the conservative viewpoint.
If the filibuster was gone, the minority party would have no recourse to stop it; or stop Republicans from reinstating the Electoral College- with whatever changes they see fit.
Some voices on the left are urging caution; the end of Roe V. Wade is not really the end of abortion access in America. While it is true that some conservative states will move to tighten their restrictions, it is also true that this is already happening. What’s more, more liberal states will expand their abortion access in response; as they have been doing already, just as they have with other policy issues on which the state- and the people who live there- are at odds with federal government policy.
This isn’t just unavoidable; it might even be better. In kicking back the question to states and local governments, the Supreme Court is giving voters more direct control over the governance on abortion in their state and area.
Progressives should consider carefully before moving forward with drastic measures to pack the court or end the filibuster. The Law of Unintended Consequences is immutable.
Democrats and Republicans, in their turn, changed the rules on court appointments and nominations, lowering the threshold from a 2/3 majority to a simple majority.
Had Republicans needed a 2/3 majority to confirm lower court judges during the Trump years, they would not have been so successful in their many appointments.
Nothing happens in a vacuum. Whatever happens next in the Supreme Court, in the battle for and against Roe V. Wade, the impact might be felt for years and generations to come.
(contributing writer, Brooke Bell)