Everybody’s talking about that New York Times poll (free link) showing that President Biden has more or less caught up with Donald Trump. But I think the results of a Wall Street Journal poll (free link) published Friday evening are a lot more significant. It shows that abortions rights are by far the most most important issue for suburban women who live in seven swing states: 39%, with immigration coming in second at 16% and the economy at 7%.
As the Journal puts it in its lead: “Abortion is the most powerful issue driving suburban women who could decide the presidential election.”
Given that the election is almost certainly going to come down to turnout, the Journal poll bodes well for Biden. Of course, if Democrats fail to take back the House and hold on to the Senate, it will be for naught, since the party won’t be able to codify Roe v. Wade as it has promised. But abortion rights will be the major issue in House and Senate races as well, so who knows what might happen?
The U.S. Supreme Court’s decision to overturn Roe v. Wade is so huge and terrible that it’s difficult to get our arms around it. So let me just look at a small chunk of it — the deeply undemocratic nature of our electoral system. You can find various polls with differently worded questions, but, in general, the public was firmly in favor of retaining Roe before Thursday’s decision. So how did we get here?
I’ve written about this before, but it’s worth repeating. A healthy modern democracy is based on the will of the majority, with protections in place for the minority. That’s why we have the Bill of Rights. Unfortunately, we now have a situation where a minority of voters is so super-empowered that how the majority votes almost doesn’t matter. Consider:
Donald Trump’s three Supreme Court justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by a president who lost the popular vote in 2016 by nearly 3 million votes. That’s a significant margin. But because the Electoral College favors small states, which are mostly Republican, Trump was able to defeat Hillary Clinton.
Those three justices were confirmed by a Republican Senate that represented far fewer Americans than the Democratic senators did. In the current 50-50 Senate, Democrats represent nearly 42 million more people than Republicans. That’s because each state gets two senators, regardless of population.
The skew is only getting worse as liberals move to more urban areas. Indeed, you can expect that one of the effects of the Roe decision is that young people will flock to urban areas in blue states — thus empowering small-state Republicans even more.
If something can’t go on forever, then it won’t. More than half the country isn’t going to put up with being permanently disempowered. I don’t know how we get from here to there, and make the changes we need to our outmoded 18th-century Constitution, but I’m confident that we will. Change looks impossible — then, suddenly, everything changes all at once.
Constitution Hall in Philadelphia. Photo (cc) 2016 by Dan Kennedy.
With the Supreme Court on the brink of overturning Roe v. Wade, it’s a good opportunity to remind ourselves of the extent to which our democracy has lurched off the rails.
Three of the five anti-Roe justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by a president who lost the popular vote and were confirmed by senators who represented far fewer Americans than those who voted against confirmation. Gorsuch occupies the stolen seat that should have gone to Merrick Garland. Barrett was rushed through at the last minute following the death of Ruth Bader Ginsburg.
This is not democracy. A few years ago, I laid it out at GBH News — and addressed the falsehood you’ll often hear that our system was designed to protect minority rights from majority rule. (The Bill of Rights is what protects the minority.) I hope you’ll give it a read. We are long overdue for a thorough-going update to our 18th-century constitution, which, quite simply, no longer works.
A few words about the extraordinary scoop broken Monday evening by Politico that the U.S. Supreme Court has put together a draft opinion overturning Roe v. Wade, thus freeing states to ban abortion.
First, we all make fun of Politico. I make fun of Politico. It succeeded by taking the horse-race approach to politics and amping it up on steroids, which hasn’t been good for anyone. But Politico is a large news organization with many talented journalists, most definitely including Josh Gerstein and Alexander Ward, who broke the Roe story. It is possible to both generalize about Politico’s shortcomings and praise it when it produces extraordinary work.
Second, Brian Stelter, writing for CNN’s “Reliable Sources” newsletter, flagged a tweet from SCOTUSblog that is worth pondering: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.
Good. If the right-wing majority is going to turn back the clock on reproductive rights by 50 years, then let the entire court descend into scorpions in a bottle. The interests of society as a whole may be better served by the spectacle of a court in chaos. We all need to understand that this is now a rogue institution, undone by Donald Trump’s illegitimate choices of Neil Gorsuch, who holds the seat that should have gone to Merrick Garland, and Amy Coney Barrett, rushed through at the last minute.
Third, the draft decision cites the 1896 Plessy v. Ferguson as a case whose outcome was so egregiously wrong that it had to be overturned in its entirety. Plessy failed to recognize the rights of Black Americans under the 14th Amendment and was in fact reversed in Brown v. Board of Education 58 years later. The decision to overturn Roe, though, is more like Plessy than Brown in that it takes away long-established constitutional rights.
Historian Heather Cox Richardson compares the draft opinion to the infamous Dred Scott decision, the 1857 Supreme Court case that took away what few rights Black Americans had at that time and paved the way for the Civil War. She writes in her newsletter:
And so here we are. A minority, placed in control of the U.S. Supreme Court by a president who received a minority of the popular vote and then, when he lost reelection, tried to overturn our democracy, is explicitly taking away a constitutional right that has been protected for fifty years. Its attack on federal protection of civil rights applies not just to abortion, but to all the protections put in place since World War II: the right to use birth control, marry whomever you wish, live in desegregated spaces, and so on.
The decision isn’t final yet, but I don’t see how we can expect it to change. This is a dark day in American history — the latest in many dark days. God help us all.
