I guess “Roevember” really was a thing. Lots of factors played a role in the Republicans’ underperformance in the midterm elections, but it sure seems like the decision by conservative justices on the Supreme Court to overturn Roe v. Wade was a major one. The United States Senate might have been handed back to Democrats by Samuel Alito and his extremist ruling—signed, of course, by all five of the other conservatives.
One person looking to press the policy advantage Democrats currently enjoy is President Joe Biden. Over the weekend, with the House of Representatives still technically up for grabs, White House senior aide Anita Dunn went on TV to reiterate Biden’s stance that Congress should “codify Roe vs. Wade, so that it is the national law of the land.” Biden understands that the voters have spoken, and he’s positioning his administration and the Democrats as the people who want to give the voters what they want. And what they want is to not have Ted Cruz anywhere near their uteruses.
I want that to happen. I think Democrats should use maximal power to enshrine abortion rights, including getting rid of the filibuster if need be. It’s the right move both in terms of policy (reproductive rights should trump states’ rights) and in terms of politics.
But people should operate without any illusions: If the Democrats somehow pass a national law codifying Roe v. Wade, the conservative justices will use the emergency “shadow docket” to prevent it from taking effect and then strike it down later, when it is electorally convenient for them to do so.
The idea that the conservative Supreme Court would respect an act of Congress that they don’t like is a fantasy invented by Republican strategists eager to mask the true nature of our extremist court. It is pushed by mainstream media folks and court insiders in D.C. who are desperate to portray Chief Justice John Roberts as a good guy so they don’t sound too “partisan.” It is untethered from reality: There is simply no evidence that this court would allow national abortion protections to hold.
The court has revoked abortion as a federal right, which is important because that limits Congress’s options. Arguably, Congress is unable to pass a national abortion protection pursant to its authority to enforce the 14th Amendment’s grant of equal protection and due process, because the court denies that such grants extend to the right to choose. Other major pieces of legislation, like the Civil Rights Act or the Voting Rights Act, exist only because the court acknowledges (or at least used to acknowledge) those laws as “necessary” to enforce the 14th and 15th amendments, respectively. I think the court is wrong and that Congress should have the authority to protect abortion rights under the 14th Amendment, but I will not be ascending to the Supreme Court anytime soon.
That means a codification of abortion rights would most likely come down as a use of Congress’s power to regulate health-and-safety standards under the constitutional authority given to it by the Commerce Clause. And I’m sorry to say that we have a ton of evidence that this court takes a dim view of the government’s power to regulate health and safety. Back in January of this year, the Supreme Court struck down President Biden’s vaccine-or-test mandate for private employers. The court, by an entirely predictable vote of 6-3, ruled that the Biden administration exceeded its authority under the Occupational Safety and Health Administration to protect private employees from Covid. Indeed, throughout the pandemic, we saw the Supreme Court either strike down emergency measures relating to the crisis (like the eviction moratorium) or leave in place lower court rulings that did the same.
Oh, but these are executive actions, you say? The court will have more respect for a health-and-safety act of Congress, you imagine? Well, let me remind you of the granddaddy of all congressional health-and-safety actions: the Affordable Care Act. People think of National Federation of Independent Business v. Sebelius as the 2015 case where Roberts “saved” Obamacare, but let’s remember what really happened there. On a far less extremist court, there were five votes—including one by Roberts—to invalidate the ACA as an unconstitutional use of congressional power under the Commerce Clause. The trick Roberts used to save the law was to convert the ACA from a regulatory action of Congress into a tax. It was a brilliant bit of legal obfuscation that has given Roberts his undeserved reputation of being a moderate. But make no mistake: At the beating heart of NFIB is a shocking denial of congressional authority to regulate the standard of health care that must be provided in the various states.
Conservative justices barely allowed Congress to pass a minimum level of insurance coverage, but now we’re supposed to believe they will let the federal government force states to provide abortions? Have you met these people?
Speaking about who these people are in real life, I haven’t even mentioned that these conservatives are actively trying to usher in a fundamentalist Christian theocracy and force the rest of us to live in it. The religious views of justices like Samuel Alito, alleged attempted rapist Brett Kavanaugh, and Amy Coney Barret are already on the record. But people forget that Roberts’s wife, Jane Sullivan Roberts, was a fierce forced-birth advocate before she pulled back on her public life to avoid the appearance of impropriety with Roberts on the court. People do remember that Clarence Thomas, and his wife, hold the same views and don’t care about the appearance of corruption. That’s five justices whose personal views, I believe, prevent them from ever allowing the government to protect the rights of women and pregnant people, law be damned (see their ruling in Dobbs v. Jackson Women’s Health Organization for more evidence). The sixth conservative, Neil Gorsuch, barely suffers the federal government to exist.
The only potential hope that abortion protections might survive this Supreme Court lies in the justices’ recognition of the political gravity of their position. The justices can read exit polls, same as the rest of us. Roberts likes to deliver electorally justifiable rulings to the Republicans. Kavanaugh is so desperate to be treated by the media like Roberts gets treated that you can almost smell it on him. If they read the tea leaves, there’s at least a very small chance that they would uphold national abortion protections because that would be the only way to help the Republican Party. A watered-down, bare-minimum version of abortion protections (the only kind “Democrats” like Joe Manchin would ever vote for in an election year), with exceptions for rape and incest, largely takes the issue off the table for the upcoming presidential election cycle. Moreover, if the court were to strike down such a bill, it would only increase the calls for Democrats to expand the court, something we know the conservatives currently looking forward to holding 30 years of unaccountable power do not want.
If the GOP were a functional political party, it would jump at this chance to appear reasonable; Republicans in Congress would release their vulnerable colleagues to support Roe v. Wade; McConnell would muster up nine or 10 votes in the Senate to obviate calls to end the filibuster; and Roberts would find some way to make it all work.
But they won’t do these things, because conservatives are not in a political party; they’re in an ideological cult. Understanding this is key to understanding why the Supreme Court will never allow a law protecting abortion rights to exist, so long as conservatives hold the balance of power.
Democrats should force the issue anyway. The more people see what this extremist court does, the more people will be willing to stop them.