By David M. Greenwald
In 2018, Republicans were headed for a disastrous midterm election when a funny thing happened—the Brett Kavanaugh appointment battle. At the time, I sensed it was a mistake. Kavanaugh was relatively moderate. Republicans controlled the Senate. It wasn’t even a pivotal seat. From a political standpoint, why go to total warfare?
As it turned out it was a huge mistake. Kavanaugh was narrowly appointed and, even if he hadn’t been, Trump had two years to get another appointment through. And the battle energized the Republican base and saved control of the Senate, which meant the Republicans would be able to seize a more important sixth Supreme Court seat in late 2020 when a Democratic Senate majority would have prevented it.
The Democrats picked the wrong battle and lost both the battle and the war.
I have always felt that the Republicans would lose a huge advantage that they have if they actually succeed in overturning Wade. The problem is that, unlike the Republicans, the Democrats don’t know how to take advantage.
The problem that the Democrats have right now is that 2022 is shaping up just like 1994 and 2010. President Biden is deeply unpopular. He has made some grievous errors. The climate is heavily tilted against him—some of that not being his fault, but a lot of it is. And just like 1994 and 2010 (and to some extent 2014) Democrats will stay home and Republicans will romp.
Democrats have shown they will come out if properly motivated. Republicans just always come out. That’s a problem for the left. It’s why in 1996 and 2012, despite getting routed in the midterms, Democrats have rallied to win the White House.
In a way, the worst thing that happened to the left was that Trump lost in 2020. It sucked the steam out of the Democrats’ anger. In 1996 it took the Contract on America, in 2012, the Tea Party and, in 2018 and 2020, Trump to rally the troops.
But here’s the thing. If the leaked memo on Roe holds, the right has just done the left a huge favor. They just injected energy into a base that was lacking it and anger into a base that had gone flat since Trump disappeared off the front pages for the most part.
The result was pretty instantaneous. Immediately my social media feed, my Twitter feed was filled with anger and energy about the overturning of Roe v. Wade. Polling overnight showed that the public by about a 20-point margin favored keeping Roe v. Wade. That’s actually not something that has been new. That’s about where the public has been for the last 30 to 40 years.
What has changed now is, for the first time, that issue is threatened. That means the salient advantage that the right had on the issue is about to be gone. For a long time, the public favored Wade but, because it was the law of the land, those against abortion actually had the political advantage in being able to mobilize against a policy that they cared about far more than the other side. That advantage is about to be gone.
With Roe about to go to down to defeat in the court, suddenly the legislature is going to matter—and not just the Congress that could legislatively override the court decision, but in every state where abortion was banned there will be a pitched battle for control of the legislation. For decades the left has simply ignored state legislatures, to their detriment—now it matters a lot more.
But it’s actually worse than that for the right. Roe is not the only domino that could fall.
A few weeks ago I had Dan Canon, a law professor at the Brandeis School of Law. He was one of the attorneys who litigated Obergefell in front of the Supreme Court which paved the way for same-sex marriage. He also litigated the Kim Davis case in Kentucky.
Back in 2021 he tweeted, “Back when Trump was elected, I said same-sex couples didn’t have to be worried about their marriages. I was wrong.”
He added, “In 2016, I grossly underestimated the effect of Trumpism on the lower courts and on red-state legislatures.”
He thought that, based on the fact that the victories in the Davis case “were so decisive” but last year, he argued “things have changed.”
He argued instead “the unwillingness of SCOTUS to do anything about SB 8 sent a clear signal to red-state legislatures: ‘Do whatever you want, the courts won’t stop you.’ TX GOP heard that message loud and clear. Look for this in all other red states too, certainly by next session if not before.”
In a nutshell, the federal courts are not striking down laws that clearly violate previous court precedent.
Moreover, he believes that even with progressive legislation in some blue states, the courts could simply overturn it. We could be seeing a situation similar to what happened in the 1930s when the Supreme Court nullified key new deal legislation.
But there is a real risk here for the right. In 2020, we saw a surge of support for racial equality after the death of George Floyd, but that quickly dissolved when the left overreached and the right backlashed.
The problem here is that both women’s groups and gay groups have huge numerical and resource advantages that the civil rights groups lacked two years ago.
“Don’t Say Gay” coupled with overturning “Roe” could unleash energy and money from two of the strongest groups in the left’s tent. And that could energize a base of not only progressives but relatively moderate suburbanites scared to death of a right wing social agenda and now threatened in a very real way.
That’s all of course theoretical. The problem is—as we have seen over the last more than 50 years, really since the right defeated Abe Fortas—the right is just better at this game than the left. The left isn’t going to undo the massive structure that the right has enacted over the last 55 years overnight and the left is not going to have the fortitude and patience to methodically rebuild the system like the right did.
In short, this will be a short-term anger that subsides and leaves no real lasting change. That is especially true because most of the effect here will be in hard red states and, thus, the base in places like California, just won’t be impacted that much.