One thing I think too few people are factoring into their handicapping of the 2020 presidential election is the impact of Supreme Court decisions that come down between now and then. With the announcement that the Court will be revisiting the constitutionality of a particularly restrictive abortion law, there is the potential for a lot votes to move.
The Supreme Court will review a restrictive Louisiana law that gives the justices the chance to reconsider a recent ruling protecting abortion rights.
The court said Friday it would consider whether the 2014 law requiring doctors at abortion clinics to have admitting privileges at nearby hospitals unduly burdens women’s access to abortion…
The law is almost identical to a Texas law that the Supreme Court struck down in 2016. But in that case, now retired justice Anthony M. Kennedy joined the court’s four liberals to form a majority. Since then, President Trump has added two new justices who were enthusiastically supported by antiabortion groups.
I’ve always felt that abortion is an issue that mobilizes the right more than the left because few people get excited about existing law or protecting the status quo. But, for the same reason, if the Supreme Court ever really moves to restrict access to abortion, I think it will be the left that is galvanized.
In truth, there are a lot of people who are not engaged politically today but who will become activated if they wake up one morning and discover that abortion is suddenly unavailable in their state. The ruling in this case could have that effect in more than a few states in our country. In fact, it would be shocking and totally disillusioning to the right if the newly conservative Supreme Court doesn’t fulfill their dreams and substantially uphold the Louisiana law. I’d also be surprised if their revisionism ends there.
And it’s not just abortion law that stands to get upended between now and Election Day in 2020. There will be rulings on issues as varied as hiring discrimination against LGBTQ applicants, banishing the insanity defense, juvenile life sentences, Deferred Action for Childhood Arrivals (DACA), making it essentially legal for border enforcement to shoot people on the Mexican side of the border, and stripping the District of Columbia and all our territories (like Puerto Rico and Guam) of the right to choose their own leaders.
Each of these cases will probably result in appalling outcomes that shock the conscience of the broad political middle of the country. In most cases, they will mobilize more people to vote for the Democratic presidential candidate than the Republican one.
I hope you’re right, Martin. I wonder if many people will engage around restrictive court rulings. Certainly a lot of people will be outraged, but those are mostly the folks who are already active. Will those who aren’t reliable Democrats get activated to support our candidates? We’ll see.
In theory, quite correct. But other than the abortion jackpot, I wonder if (expected) “conservative” rulings on any of these will outrage the generally oblivious non-“conservative” electorate. It would be surprising for Team Conservative head coach Roberts (and now preposterously the “swing” vote) to intentionally incite the sane secular wing of the electorate in a prez election year. And Roberts is much more a “conservative” activist than a legitimate federal judge.
The Court takes almost all its cases on its own discretion. 4 Justices have to vote to take a case in order for it to be heard. There are 5 (Repub) extreme “conservatives” and 4 (Dem) moderates (there is no actual “lib’rul” justice), and the vote on whether to take a case is secret. So there’s no way to really know if the “conservative” wing or the moderate wing voted to take a controversial case. The other general principle is that the Court usually doesn’t take a case to affirm the lower court–that’s generally a waste of their time. But of course it can happen.
Applying these rules to something like DACA, where the lower courts (I think) have ruled for the kids (which is also the disfavored “librul” result), it seems highly likely that the DACA kids are doomed, and a 5-4 ruling against them and in favor of the cruel “conservative” position of Der Trumper is pretty likely. Plus, ruling against the innocent kids only outrages voters who are already vehemently opposed to National Trumpalism, so swing voter Roberts gets to burnish his hard-nosed “conservative” credentials, while greatly enthusing Trumper’s Latino-hating white deplorables. So a win-win for him.
The Louisiana abortion case is a much tougher call. The hardcore “conservative” 5th Circuit appeals court had upheld this La. law, even though the Supreme Court had previously struck down a very similar Texas law a few years ago. In that case, Roberts voted with the “conservatives”, imagining that the TX law did not affect the Texas ladies in the least—even though it would have closed down every abortion clinic outside of a city of 6 million. But now the 5th Circuit has forced Roberts hand by upholding this (very similar) La. law. Again, we don’t know which faction voted to hear this case.
The case puts Coach Roberts in a tough position, very similar to the Obamacare case, where he was ultimately unwilling to have the 5 Repub justices strike down this landmark law over united Dem justice opposition. So he could (again) play the moderate beltway “hero” and strike down the La. law on the grounds that it is exactly the same situation as the TX case and that prior precedent should have determined the result. On the other hand, he dissented in the TX case and, as a Catholic convert perfectly willing to impose his religious beliefs on others, he is vehemently anti-abortion. But if he votes to strike down the La law when he previously voted to uphold the TX law, he will be mocked, hated and reviled by the evangelical and hardcore crackpot wings of the “conservative” movement for the rest of his life.
So what’s a “conservative” politician masquerading as a “justice” to do? I’d guess he rules to uphold the La. law, while yapping hollow nonsense about how this does not mean Roe is overruled. So abortion rights will be effectively destroyed, by a (democratically illegitimate) 5-4 “conservative” ruling. And that certainly could animate the secular electorate, if they understood what the ruling actually meant.
Interesting comment, thanks.
I’ll just register the view that overturning DACA isn’t (or at least, may not be) a “win-win” for the Right. Ruling against “innocent kids” could/will also outrage some centrist voters who think “illegal immigrants” should be sent back because they didn’t “wait their turn”, but who also think it’s not fair to deport adults who were brought here as young kids and have known no other country.
Abortion is another issue where centrists could react against the extremists taking control of national policy. Ditto for gay rights, and criminal justice issues.
I think Roberts wants another conservative seat on the Supreme Court first. Ideally he would be able to dissent from the majority for some technical reason, protecting his status as impartial and scrupulous, while getting the conservative rulings he really wants. He may therefore postpone any big decisions until after the election, obviously hoping for another GOP president, and then another new appointment. In the meantime, he will go for narrow rulings that keep the prospects alive for bigger decisions, and wait until it is a 6-3 court before completely revamping American law.