By the time you read this, Donald Trump is expected to have named his 11th-hour nominee for the Supreme Court, in what will have been Part II of the Great Court Heist of 2020. And when it’s all over — whatever happens to Trump in November and beyond — we’ll have a court prepared to overturn Roe v. Wade, a court prepared to diminish voting rights, a court prepared to overturn Obamacare, a court prepared to turn back the clock on LGBTQ rights, a court prepared to scare the hell out of maybe you and certainly me.
Remember when all the talk was of liberal activists judges? The activist-judge part hasn’t gone away. But we’re now in an era of overwhelmingly conservative activist judges and will be for the foreseeable future, thanks to Mitch McConnell and his willingness to push any and all right-wing federal judges through the Senate, whether qualified or not.
Part I of the Supreme Court heist came when all but two Republicans agreed to take part. Cory Gardner, who routinely charges John Hickenlooper with a lack of ethics, hypocritically and cowardly signed on with Trump and Mitch McConnell in an ethical lapse that may haunt the country for generations. I wish Gardner would have settled for a few semi-dodgy plane flights instead.
After turning aside his disingenuous reasoning for refusing Merrick Garland a hearing to replace Antonin Scalia — it was, in March of 2016, too close to the election, Gardner said back then — Gardner is suddenly fine with Trump making his pick to replace Ruth Bader Ginsburg six weeks before Election Day. When it comes to ethics, Cory Gardner might as well have signed on as McConnell’s bag man. I mean, when Gardner boldly came out in favor of a peaceful transition of power, he notably never mentioned Trump’s name. Of course he didn’t.
Trump has unashamedly admitted he wants to name one more justice because he believes the Supreme Court will be needed to rule on the, uh, rigged election to come. Trump is counting on his justices to stick by him if he should lose and, inevitably, still claim that he won. It could well come down to the Supreme Court as it did in Bush v. Gore, the main difference being that if the Trump-heavy Court were to rule against the president, he’d probably ignore them anyway.
Over the past few days, we’ve seen Trump double down on his unwillingness to commit to a peaceful transfer of power. Now, if you have a reasonable tolerance for nightmares, please read the current Atlantic cover story by Bernard Gellman, headlined The Election That Could Break America. Gellman asks the question that if Trump tries to subvert the election — which he almost certainly will try — who will stop him.
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Trump also wants a confirmation hearing to dominate the news and push from view the 200,000 COVID deaths, the shattered economy, Trump’s role in both cases, and, of course, the latest outrage in the tragic case of Breonna Taylor. But how would the hearing play among the suburban women Trump so desperately needs?
That’s where we are today. But this column goes a step further, to where we’re almost certainly headed. Trump has promised that anyone he nominates will vote to overturn Roe v. Wade. With his third pick in four years— made as a president who lost the popular vote by nearly 3 million — he will give the political right a 6-3 advantage on the court.
But if you’ve been patient enough to get to this point, I have some news.
Overturning Roe v. Wade would be a disaster not only for the mostly poor, Black and brown women who would no longer have affordable access to abortion. It would also be a disaster for the Republican Party.
For decades, ending Roe has been the holy grail for the evangelical right. By always falling short, Republicans maintain their ability to stir up the base. They were always one step closer, one vote closer, one Senate race closer, one state House race closer. But finally getting there would be not unlike the dog catching — cliche alert here — the proverbial mail truck. Now what?
Republicans have been hiding behind Roe v. Wade to keep putting in more restrictions on abortion as the courts go along, but never going all the way. Democrats have been hiding behind it, too, never trying to turn Roe v. Wade into actual law. Democrats know most of the country is on their side — just as it is with guns — but they still have considered a legislative fight too risky, especially when Roe, as nearly every Supreme Court nominee has said for years, is settled law.
Many Americans — 61 percent according to latest Pew poll — support keeping abortion legal in most cases. Overturning Roe v. Wade would leave the matter up to the states, about a dozen of which have trigger laws that would outlaw abortion the moment the Supreme Court did away with Roe. Another 10 states or so have a different kind of trigger law, which requires the legislature to take up the issue.
Robin Marty, who has studied the issue for years and written two books on what happens if Roe is overturned, predicts that if Roe is lost, “We’re going to see abortion is completely illegal except for the West Coast, which is on fire, the Northeast, and then basically Colorado, Minnesota, Illinois, and New Mexico.”
Republicans know the stakes here. When North Carolina Sen. Thom Tillis, a Republican in a tight race, was asked by the New York Times if he wanted to see Roe v. Wade overturned, he said, “My opponent wants to go to Roe v. Wade, and then I go back to him taking very radical positions on late-term abortions.” When asked the same question, Sen. John Cornyn, a Texas Republican, said, “I’m pro-life, but I also understand what that would mean in terms of the country.”
In terms of the country, whose citizens would look around and see a dystopian America where women have lost control of their bodies, the backlash would be enormous. The importance of the issue would inevitably switch to the Democratic side. If the stakes weren’t so high, I’d say this was a don’t-throw-me-into-the-briar-patch situation. If Republicans lose the threat of Roe v. Wade, what do they have left? Like gay marriage, like racial justice, like abortions, young Americans overwhelmingly believe that in the year 2020, we should be past all this.
We’re not. Trump will almost certainly get his justice approved in hearings that will inevitably turn a divided America into, well, an even more divided America. I doubt this helps Trump’s reelection bid. A large majority of Americans,in the latest polling, believe the Trump-Biden winner should choose. I’m guessing it hurts him — unless the new Ginsburg-less court is set up for a quid pro quo. For argument’s sake, let’s hope they are more ethical than the Bush v. Gore justices and more ethical, say, than McConnell and Gardner. And for argument’s sake, let’s say that if Trump loses, he gives up the presidency, after much chaos, on Jan. 20, 2021.
But even if he does lose and his presidency ends semi-peaceably, that won’t save Roe v. Wade if the Senate confirms his Supreme Court nominee. The only chance to save Roe would be if the Roberts court simply refuses to rule on it and instead rules on the long series of limitations on abortion rights instead. Or, of course, unless there’s a new president and a new Senate, which puts an end to the filibuster and court packing becomes a reality, which is a lot of ifs, but all of them possible.
In other words, even if the war is lost, the one thing you can be sure of is that the battle continues.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow.
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