Last week was an historic one for the country, and not in a good way. While Covid-19 and Afghanistan have hogged most of the headlines in the country for the past month (the former, the last two years), a court case in Texas, and the 5-4 decision by the Supreme Court to not overturn a clearly unconstitutional law left us with Roe vs. Wade, the landmark abortion rights case, overturned in the Lone Star State. Technically, Republicans will argue, it hasn't actually been overturned, but practically speaking it has. The law states that you can't get an abortion if you are over six weeks pregnant, a time when most women are unaware that they are pregnant. As a result, if you can't get an abortion until it's too late (i.e. before you even know you're pregnant), it's illegal.
There are a lot of things to dissect here, and I might get into it a little bit another day (this is a big deal about a political issue that has been a cornerstone of American social policy for fifty years, and will have reverberations at the ballot box) in regard to what the bill entails (there's a civilian surveillance part of this that feels exponentially creepier than just the ban), but first I want to talk about how we got here. The Supreme Court had a 5-4 ruling, and I want to point out that this didn't have to happen. In multiple other universes these five people wouldn't have had the ability to overrule this landmark decision, and so I think it's important to point this out as an illustration of how close we came to protecting Roe, and why small moments in politics can have unexpected ripples.
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| Supreme Court Justice Thurgood Marshall |
Thurgood Marshall, the progressive titan and member of the Supreme Court served from 1967-1991 as the first African-American man on the Supreme Court. By 1991, he was in ill health, ready to leave, but was reportedly upset about the conservative direction of the Supreme Court and that George HW Bush would replace him rather than a Democrat. Marshall's, health, though, was such that he didn't feel he had a choice (likely assuming that Bush was going to appoint his successor anyway). Marshall would die 18 months after his announcement...four days into the presidency of Bill Clinton. Had Clinton replaced Marshall, the three names that likely would have showed up were Ruth Bader Ginsburg, Mario Cuomo, or (most likely) Stephen Breyer (Breyer wasn't considered to succeed Byron White because he'd suffered a recent injury, which wouldn't have been the case in 1993). Breyer eventually made it to the Supreme Court to succeed Harry Blackmun, but had he been named in 1993, we'd have never heard of Clarence Thomas, and it's probable that the eventual Blackmun successor could have still been alive (someone like Bruce Babbitt). Thurgood Marshall waits until his death to retire...Roe remains intact (and a whole host of other things probably happen, including Bush v. Gore going a different direction, to the point where we might have a different president in 2000).
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| Miers with President George W. Bush |
In 2005, at the beginning of his second term, President Bush learned that Sandra Day O'Connor would retire. He announced that John Roberts would succeed her, but when William Rehnquist passed away, Roberts was named for the Chief Justice spot, and Bush turned to Harriet Miers, then the White House Counsel, to succeed O'Connor. Miers was considered a bit of a wildcard politically (her views weren't well-known, other than she worked for Bush), and after she bombed at her Senate hearing, she dropped out so that Samuel Alito (one of the other five justices who overturned Roe vs. Wade) eventually got O'Connor's spot on the Court. One of the issues that Miers seemed the most lukewarm on was abortion-she had said in a survey in 1989 that she favored a constitutional ban on abortion, but later said in a speech in Dallas that "self-determination makes the most sense." Some at the time thought that this might have meant Miers would be lukewarm on abortion if she was confirmed, favoring restrictions but not an outright ban. It's not clear whether or not this would've changed the results last week, but Miers (who is still alive), offers up a potential question mark in this debate, as unlike Alito, she might've changed yesterday's ruling particularly considering the extreme nature of the Texas law.
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| Judge Ruth Bader Ginsburg |
The biggest, easiest, and most foreseeable place where Roe vs. Wade could've been upheld was in 2014. During Barack Obama's first term, both David Souter & John Paul Stevens had retired, ensuring they were succeeded by pro-choice liberals (abortion rights were a 5-4 affair with the retirement of O'Connor a decade earlier). With the Democrats holding the Oval Office and 55 Senate seats, now was the time for Ruth Bader Ginsburg to emulate them. After all, she was in her late 70's and had been recently battling cancer, the Democrats had held the White House for six years and the Senate for eight-this combination wouldn't last much longer. Ginsburg, though, succumbed to her own celebrity (something both Dianne Feinstein & Stephen Breyer are currently suffering from), and refused to leave her perch. Had Ginsburg retired in 2014, she would've certainly been replaced by a younger liberal justice, and abortion rights would still be preserved in the United States. RBG stans don't like to hear this, but much of Ginsburg's legacy was destroyed by her ego, and it's hard for a lot of progressives (myself included) to think of her as anything but selfish for allowing Amy Coney Barrett to become a judge (something that was foreseeable in 2014 given her health & age).
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| Rep. Shelley Berkley (D-NV) |
Ginsburg's retirement is entirely on her-the Democrats would still have kept the seat now held by Neil Gorsuch, though, if they'd been able to confirm Merrick Garland in 2016. This is on Mitch McConnell, but Democrats counting on McConnell to do the right thing need a reality check. Instead, it was on the Democrats in a two-pronged failure. The first was in not holding the Senate majority in 2014. While this would've been hard to hold totally based on 2014 races, if you look at the past three cycles (never forget-winning the Senate is like chess...you have to be thinking a couple of movies (i.e. cycles) ahead), it's clear where the majority was lost. Four states, all of which Barack Obama had won in 2008 (and three he won in 2012) were lost by less than 2-points, a marker of a truly close race: Illinois in 2010, Nevada in 2012, & North Carolina/Colorado in 2014. Given Obama's successes in these states, all the Democrats needed to do was turnout; indeed, in Nevada, literally all Democrats needed to do was mark their ballot for Obama and Shelley Berkley (Berkley's margin-of-loss was so small she literally would've won simply if Obama voters hadn't skipped voting in her race). The Democrats, though, weren't enthused by a lot of these candidates-Berkley, Alexi Giannoulias, & Mark Udall were all criticized in their races for running lackluster campaigns. But one of the bigger truths in American politics, particularly when it comes to control of the Senate, is that majorities are rarely built by glamorous campaigns like ones we've seen recently from Beto O'Rourke or Jaime Harrison. More often, they're built by forgettable backbenchers who are able to get the Democrats to add to fifty even if they aren't inspiring the masses. By abandoning these four potential senators, the Democrats gave up a majority, and even the slimmest of majorities would've gotten Merrick Garland confirmed in 2016...which would've protected Roe. For the record, Democrats lost their majorities in 2016 (when Kavanaugh was confirmed) and 2018 (when Barrett was confirmed) with states Obama won but the Democratic Senate candidate lost by less than 2-points, so those later losses in Pennsylvania (Katie McGinty) & Florida (Bill Nelson) also caused this.
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| Sec. Hillary Clinton (D-NY) |
The above Senate contests contributed vastly to the Democrats not winning their case last week, but that's not going to be where a lot of Democrats focus their frustrations-they're going to focus it on Hillary Clinton losing in 2016. This is a bit unfair, since one could argue that #3 & 4 above had more impact on the Court case (since in those cases, the Democrats were guaranteed another liberal justice), whereas here it's just assumed. Clinton, after all, even if she was able to carry Pennsylvania and carry Katie McGinty to a victory there, would've entered the US Senate without a majority in the Senate, and it's possible that Mitch McConnell would've resisted replacing Antonin Scalia forever (I wouldn't put it past him). But it's undeniable that a Clinton victory would've prevented Brett Kavanaugh & Amy Coney Barrett from taking the Court-either Anthony Kennedy would've resisted retiring or he would've been replaced by an empty seat (or someone who is pro-choice) and Ginsburg would've been in the same situation. It's theoretically possible Clinton loses in 2020 and the Republicans are able to replace all three of these positions in rapid succession, but I honestly doubt McConnell would've been able to watch Clinton have three openings & it not hurting him at the polls in 2018 or 2020. As a result, yes, if you're blaming Jill Stein voters for costing us abortion rights in Texas, you have a point.
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