Supreme Court Decisions Upend Our Politics - Horowitz

Supreme Court Decisions Upend Our Politics - Horowitz

In consecutive days at the end of last week, the Supreme Court unveiled major decisions that run counter to the views of a substantial majority of Americans. In Dobbs v. Jackson Women’s Health Organization, the Court completely overturned Roe. v. Wade, sweeping away in one landmark decision a women’s right to an abortion, a precedent that stood for nearly 50 years.  In New York Rifle &. Pistol Association v. Breun the Court ruled a New York law adopted 100 years ago restricting the right to carry a concealed firearm outside of the home unconstitutional, substantially expanding the reach of the Second Amendment and putting other common-sense gun safety measures at risk. More unpopular rulings are likely before the Supreme Court adjourns towards the end of this week.

These rulings drive home the far-reaching consequences of President Trump’s appointments of 3 conservative and arguably activist justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The appointments created a 6 to 3 conservative majority on the Court, reducing the power of Chief Justice Roberts to forge compromises. The chief justice is certainly conservative, however, he is also an institutionalist, inclined toward incremental decisions that give at least some deference to precedent and that are more likely to maintain the Court’s standing in the eyes of the public  A case in point is that in the 5 to-4 decision to overturn Roe v. Wade, Roberts dissented, arguing that to decide the case in front of the Court only required paring back Roe sufficiently to determine that the Mississippi law that was under dispute, which banned abortion after 15 weeks, was constitutional. Before the appointment of Barrett, his more measured approach would have carried the day, limiting the public outcry  

Taken together, the rulings and what they signal about the grand ambitions of the Court’s conservative majority will shake up our politics, tilting the playing field a bit towards the Democrats.  In the short term, they are likely to make the political environment for the mid-terms somewhat less difficult for the Democrats, giving them a better shot at limiting their losses.  Additionally, significant new opportunities for Democratic gains on the state level have opened up.  Over time, the composition of the Supreme Court, which has long been an animating issue for Republicans and conservatives is likely to become more of one for Democrats and liberals.

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Whatever one thinks about the constitutional merits of the conservative majority’s approach, it is far out of step with American public opinion. Nearly 6-in-10 Americans oppose the Supreme Court’s decision to overturn Roe v. Wade, for example, according to a NPR/PBS News Hour/Marist Poll conducted in the wake of the decision.  More importantly for electoral purposes, where the intensity of opinion matters, more than 4-in-10 say they strongly oppose the decision.  Similarly, nearly 6-in-10 Americans are concerned that “the Supreme Court’s decision could also jeopardize the rights to contraception and same-sex marriage” with more than 4-in-10 very concerned.  Along the same lines, 57% of Americans think the decision was motivated by politics—not adherence to the law.

Between now and November, the issue of abortion will stay front and center as the impacts of the overturning of Roe play out in about half of our states, which either have recently passed laws severely limiting or outright banning abortion, sometimes without exceptions for rape and incest or have so-called trigger laws on the books banning abortion that are now activated as a result of the Court’s decision.  Congressional candidates on the ballot in the mid-term will have to take a position on whether or not they support reversing the impact of the Court’s decision by passing a federal law codifying Roe. 

This will all contribute to converting --what has been on the issue of abortion for the past 50 years or since Roe was decided --a pro-life and Republican advantage on political energy and at the ballot box to a decided pro-choice and Democratic advantage in political energy and in net votes gained.  

On gun safety, as well, the Court’s decision will be a net political plus for Democrats, undermining some of the political gains Republicans made when Senator Minority Leader Mitch McConnell greenlighted Republican senators' support for a  modest package of gun safety measures, resulting in its recent adoption. McConnell made this smart political decision because he knew that gun safety measures are popular and of increasing importance to voters in the wake of a spate of mass shootings and he wanted to neutralize the issue for the mid-terms.   The Court’s striking down of the New York gun safety law undermines that effort at least somewhat.

The Court as currently constituted is likely to continue to issue decisions that reverse precedents that the American people have come to rely on.  These decisions will be unpopular.  Over the past two years or so, confidence in the Court has precipitously declined from 60% of American adults to 40%--and is likely to drop even further. 

As a result, the composition of the Court is likely to no longer be of major concern only to Republicans and Conservatives. It will be salient across the board.  The costs to the rest of us of not becoming more engaged in these fights over the years are now impossible to ignore.