It is difficult to describe what an achievement the overturning of Roe v. Wade would be for the conservative movement. It is, more than maybe any other issue, foundational to the movement itself. This is the ballgame.
That does not, however, mean that the decision would be politically convenient in the short term for the Republican Party. Overturning Roe is not—and has not been—popular among the American people, even if abortion views overall are relatively nuanced. The overturning of Roe, which would immediately snap into place abortion bans in more than a dozen states, could be the only thing to awaken Democratic voters and at least mitigate the damage of a pro-Republican election cycle.
Leading Republicans on Tuesday, then, preferred to make the story of Politico’s bombshell publication of Justice Samuel Alito’s draft opinion overturning Roe v. Wade not about how SCOTUS appears to have a majority lined up to eliminate the right to an abortion. They tried to divert attention to the scandalous leak of that news itself.
Though we have no idea how the draft opinion leaked, or who leaked it, or why they leaked it, the rhetoric coming from Republicans implied that it came from an angry liberal employed by the Supreme Court who wanted to intimidate a conservative justice into changing his or her mind.
“Liberals want to rip the blindfold off Lady Justice,” Senate Minority Leader Mitch McConnell inveighed in floor remarks Tuesday. “They want to override impartiality with intimidation. They want to elevate mob rule over the rule of law.” The leaker, he added, knew the danger this could put justices in. McConnell recommended, then, that “this lawless action should be investigated and punished to the fullest extent possible,” and that “if a crime was committed, the Department of Justice must pursue it completely.” (Chief Justice John Roberts, in a statement released later Tuesday morning, confirmed that the draft was “authentic”—though not a “final position of any member on the issues in the case”—and directed the marshal of the court to investigate the leak.)
McConnell’s remarks were, at least, tamer than those of some conservative commentators, who viewed the leak of the draft opinion as worse than the Jan. 6, 2021, insurrection and other efforts to overturn the result of a presidential election.
But the focus on a leaker, rather than on the news of a once-in-a-generation Supreme Court opinion, was a coordinated strategy straight out of a National Republican Senatorial Committee talking point memo released Tuesday and reported by Axios. The memo urged Republican senators to focus their reaction on the leak, which was part of the “Radical Left’s” broader strategy of delegitimizing—and then packing—the court. They want to drive the debate in that more fertile direction, and away from the fact that a majority of the Supreme Court aims to take away a popular right from the American people. They’ll have another month or so to get their responses in order on that.
During his Tuesday afternoon press conference, McConnell was asked whether he, the architect of conservatives’ 6-3 majority on the court, would take credit for the decision to overturn Roe. He didn’t bite.
“I think the story today is an effort by someone on the inside to discredit the institution,” McConnell said. The impact on the midterms was “not the story for today,” the possibility of federal abortion restrictions “puts the cart before the horse,” and the issue was “not the leaked draft but the fact that the draft was leaked.”
On the Democratic side, meanwhile, the end of the world was imminent, and the only way to save it was to donate to and vote for Democrats in the 2022 midterm elections.
Senate Majority Leader Chuck Schumer opened his Tuesday floor speech noting that “this is a dark and disturbing morning for America.” He, along with numerous other Senate Democratic colleagues, gave a press conference later that morning on the Senate steps in which one elected official after another took their swings at the conservatives trying to turn back time.
Though the elimination of Roe could give Democrats a much-needed shot in the arm ahead of the midterms—and let’s not be too cynical: Most elected Democrats, like their voters, would still much prefer the Supreme Court didn’t eliminate the right to an abortion!—they have to be careful how they go about managing it. The draft might mobilize more Democrats into turning out in November if it is the ultimate opinion of the court, but November is six months away.
If this is, as Sen. Patty Murray said, a “five-alarm fire,” then Democrats need to be seen fighting now.
Schumer’s plan for that is for “the Senate to hold a vote on legislation to codify the right to an abortion in law.” He argued that this was “not an abstract exercise” and was, instead, “as urgent and real as it gets.” President Joe Biden said he would sign such a bill into law.
The chance of Biden getting such an opportunity is effectively zero, though. Democrats’ preferred partisan vehicle for codifying Roe, the Women’s Health Protection Act, doesn’t even have 50 votes. Democrats could try to negotiate something narrower with pro-choice GOP Sens. Susan Collins and Lisa Murkowski (who aren’t having great days, by the way). Even if they could get 52 votes, though, that’s eight short of what’s needed to break the filibuster—and there is not a majority in the Senate to eliminate the filibuster.
Still, Democrats in Congress will at least go through the motions. That will help the request for voters to send money and keep electing them—they, who are in power, while all of this is happening—go down a little smoother. A little bit of fire, like that demonstrated by Massachusetts Sen. Elizabeth Warren on Tuesday, wouldn’t hurt either.
Members of Congress always tend to focus on short-term politics, sure. But here, the focus on the short term is partially due to the inability to conceive of the long term. If the leaked Supreme Court draft of an opinion overturning Roe v. Wade holds in the end, Tuesday will have been the first day of the new politics of the rest of our lives. The legality of abortion will become a central, hot issue of state and federal legislatures indefinitely.
Abortion legislation will come to dominate Congress and each state legislature for the foreseeable future. Pressure will build on mainstream Democrats to reform the court. Roe was the start of a political era. The end of it would start another one.
Today, the focus is on midterm politics. If, or when, this opinion comes down, the focus will turn to forever.