The Supreme Court will soon make its most politically consequential decision since Bush v. Gore, when it effectively handed the presidency to George W. Bush. And if the justices have any thought that they might avoid or dampen the blowback from their decision, they’d be wrong.
Instead, they’re hoping that it will be the vehicle for the court to overturn Roe, declare there is no constitutional right to abortion and allow conservative states to outlaw the termination of a pregnancy.
A new Washington Post-ABC News poll shows just how strongly the American public’s opinions on this issue run against that goal. Overall, 60 percent of respondents said the court should uphold Roe; only 27 percent said it should be overturned. Even Republicans were hardly unanimous: Only 45 percent of them said Roe should go.
The poll also asked about the controversial Texas law that bans abortions six weeks into pregnancy and puts enforcement in the hands of vigilantes who can sue anyone who helps a woman get an abortion. On this, 65 percent of respondents said that law should be rejected.
That overturning Roe would be unpopular is not news. But the outcome of the Mississippi case and the fate of abortion rights won’t turn on beliefs about the Constitution or the morality of abortion itself. It will be all about politics.
There’s almost no one who believes that any of the six conservative justices have much sympathy for Roe, or that all wouldn’t like to see abortion outlawed. The question comes down to whether two of those six would join with the three liberals to put the brakes on a ruling overturning Roe.
They could even try to do it with a ruling that guts abortion rights while claiming Roe is still intact, much as the court did with the Voting Rights Act. Which would be a great disappointment to conservatives who have been waiting for this moment for decades, but might defuse some of the political fallout.
Only three look like real possibilities to take that position: Chief Justice John G. Roberts Jr., Brett M. Kavanaugh and Amy Coney Barrett. All have been supportive of abortion restrictions, but all have also shown themselves to be sensitive to the charge that the court acts out of a political agenda. Roberts and Kavanaugh in particular are known as savvy political operators. For them it may be not just a question of what would harm the court’s legitimacy — its approval ratings have plunged lately — but what would harm the political interests of the Republican Party.
Now consider the political environment they will greet as they approach this decision.
After oral arguments in the Mississippi case next month, the media discussion of the issue will grow louder and louder. More and more polls will be released showing that large majorities of the American public are opposed to what the court’s conservatives most surely want to do.
A hundred op-eds will be written, a hundred floor speeches delivered by Democrats in Congress, all imploring the court not to go down the road Republicans are asking it to.
As it comes closer to the point sometime in early 2022 when they’ll announce their decision, the pressure will intensify. With the midterm elections heating up, Democratic candidates will start attacking their Republican opponents over abortion. Faced with the prospect of the kind of defeat the president’s party usually suffers in midterms, the Democratic Party will see the court overturning Roe as perhaps the only thing that might get its voters angry enough to flock to the polls and salvage control of the House and Senate.
The justices will understand everything that’s happening. Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch almost certainly won’t care; they’ve been eager to overturn Roe at the earliest possible opportunity. But Roberts, Kavanaugh and Barrett will have to weigh the political consequences against their opposition to abortion. And they’ll know that either way they decide, the backlash will be furious.
And no, I’m not going to insult your intelligence by suggesting that their position will be rooted in some absurd speculation about what James Madison might have thought of Mississippi’s abortion law. This is about their personal and political beliefs, and we all know it.
But for a few justices, those beliefs are complicated — and it’s too early to tell where they’ll come down. We know what they want to do; the question is just how bad they want it.
