President Joe Biden’s sweeping liberal policy priorities already face a recalcitrant Senate. But he is increasingly finding his agenda at odds with another adversary: the Supreme Court.
The Supreme Court’s decision this week not to block Texas’s “heartbeat” abortion ban is its latest ruling that undermines a liberal cause. The justices already lifted Biden’s eviction moratorium, but it refused to roll back Arizona’s election reforms. And the decisions push the Supreme Court back into the political spotlight before next year’s midterm elections.
If the Supreme Court overturns the landmark abortion case Roe. v Wade, it will be a tipping point for Biden and the institution as critics complain that the Republican-appointed majority of justices has turned the bench into an activist court, according to Matthew Green, a Catholic University of America politics professor.
“When the court has been very active or activist in setting precedent, overturning past precedent, in one particular judicial, philosophical, ideological direction, there’s been a reaction,” Green told the Washington Examiner. “And it could be far more activist in this upcoming term than it has in a long time.”
Biden, a former Senate Judiciary Committee chairman who oversaw Supreme Court Justice Clarence Thomas’s confirmation and Robert Bork’s failed nomination, excoriated the court this week for wreaking “unconstitutional chaos” by allowing the Texas six-week abortion law to go into effect on procedural grounds.
“This law is so extreme it does not even allow for exceptions in the case of rape or incest,” he wrote in one of two statements released this week regarding the Texas law. “And it not only empowers complete strangers to inject themselves into the most private of decisions made by a woman — it actually incentivizes them to do so with the prospect of $10,000 if they win their case.”
Biden had previously only issued two personal statements concerning Supreme Court decisions since his January inauguration: when the court upheld Obamacare and Arizona’s election integrity laws.
Biden’s comments supporting abortion rights are an overture to liberal Democrats leery of his past positions on abortion. But Green questioned whether he was mismanaging expectations since “there’s not a whole lot that the president can do.”
“I would suspect there are people in the White House who say, ‘Let’s not muck with the court. Let the court make these decisions and make people mad. Let them take the blame,'” he said.
The Supreme Court has become more important to Democratic voters since its 2010 Citizens United v. Federal Election Commission campaign financedecision. But Republicans, particularly Senate Minority Leader Mitch McConnell, have been more strategic, including thwarting former President Barack Obama nominee Merrick Garland, now the attorney general of the United States, in favor of Supreme Court Justice Neil Gorsuch. McConnell was also instrumental in Justice Brett Kavanaugh’s and Justice Amy Coney Barrett’s appointments despite their drama-plagued confirmations.
Voters unhappy with the Supreme Court are more motivated to cast a ballot because of it compared to ones satisfied with it, according to Washington University in St. Louis political science professor Steven Smith.
“The state laws and Supreme Court response, depending upon how the court behaves, can shift the balance of political action to the advantage of Democrats,” he said.
But recent Supreme Court polling after Barrett cemented the court’s conservative 6-3 majority indicates unsettled public opinion that only tilts toward Democrats.
An Economist / YouGov poll conducted this week before the Supreme Court declined to block the Texas abortion law found almost 40% of respondents approved of the court, while the same percentage did not . Another two-fifths were not sure whether they approved or not. But more than half of Republicans approved of the court, in contrast to almost two-thirds of Democrats. Almost two-fifths of independents approved, though slightly more did not.
The Supreme Court’s and Texas law’s potency in 2022 depends on how the court decides future challenges to the legislation, as well as how Texas enforces the measure and whether other states introduce copycat counterparts. What is clear is that abortion access will remain topical because the Supreme Court is anticipated to hear Dobbs v. Jackson Women’s Health Organization, a case about Mississippi’s 15-week limit, in the fall.
For Smith, if abortion becomes a 2022 issue, it will likely hamper Republican attempts to regain congressional majorities.
“Abortion rights can activate people, enlarge the gender gap, and steal attention from issues that might advantage Republicans,” he said. “Over the next few weeks, the issue will dramatically reduce attention to Afghanistan.”
Michael Signer, a former Democratic mayor of Charlottesville, Virginia, agreed. Abortion rights have been controversial for two generations because “women care deeply about their access to healthcare and family planning, and the American people want abortion to be safe and legal,” the lawyer and political scientist contended.
“While it will harm thousands of vulnerable women in the short term, the Supreme Court’s misguided decision will end up backfiring on conservative goals,” he said. “Polls consistently show two-thirds of the American people support a woman’s right to choose. Those voters decide elections, not the extremes who dominate the GOP’s gerrymandered districts.”
But Susan B. Anthony List president Marjorie Dannenfelser argued the opposite, citing her own polling data.
“Washington Democrats are out of touch with the majority of Americans who want to follow the science and humanize our extreme and outdated abortion laws — not make them even more extreme,” she said .