The Supreme Court decisions on abortion and gun laws have been a long time coming. Arguably, their roots go back to the aftermath of the Roe v. Wade opinion, handed down on January 22, 1973. In the seventies, conservative activists, business interests, and foundations were already inveighing against the liberal jurisprudence of the Warren and Burger Courts, which had expanded the rights of women, Black Americans, and other groups. Initially, conservative activism focussed on trying to limit government regulation and downsize the administrative state, a project that had limited public appeal, but the 7–2 Roe ruling changed this dynamic. By affirming that the Constitution implied a right to abortion, Roe created an alliance of convenience between economic conservatives and social conservatives—a much larger group—which has held up to this day, sometimes uneasily, and which is reflected in the composition of the current Court.
The first lesson Democrats can take from the Court’s latest rulings is that persistence pays off. When the Court reaffirmed a right to abortion in Planned Parenthood v. Casey, in 1992, the conservative activists didn’t give up. Groups such as the Federalist Society intensified their efforts, making staunch rightist views and allegiance a litmus test for any prospective Court appointment—a test that, in 2005, Harriet Miers, the White House counsel to George W. Bush, failed to meet. Miers’s alternative, Samuel Alito, is now a key member of the ultra-conservative bloc that dominates the Court.
A second lesson from the conservative counter-revolution is that it sometimes pays to steal your opponents’ arguments, even when that involves jettisoning any semblance of intellectual consistency. In attacking liberal rulings, the conservatives originally relied on the doctrine of judicial restraint, lambasting an “activist Court” for going far beyond the intentions of the Founders. But some leading conservative lawyers—the most prominent being Antonin Scalia and Clarence Thomas—also took another tack. Where convenient, they adopted the liberals’ language of rights, claiming to have discovered hitherto undiscovered ones residing in the Constitution and Declaration of Independence, including the right to carry guns for self-defense.
“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia,” Scalia wrote in the 2008 District of Columbia v. Heller ruling. Last week, in trying to justify striking down a New York gun law that has been on the books for more than a century, Thomas extended Scalia’s argument, claiming that the Second and Fourteenth Amendments protect “an individual’s right to carry a handgun for self-defense outside the home.” (Good luck finding that clause in your old college textbook on the Constitution.)
Having claimed that the Constitution prevents New York and other states from forcing people to get a special license to carry a firearm, the Court, the very next day, turned around and said the Constitution also implies that the decision on how to regulate decisions to end pregnancies should be left to the states. Evidently, consistency really is the hobgoblin of small minds—the heirs to Scalia and Robert Bork don’t bother themselves with it.
The third lesson from the past few days is that brazenness and ruthlessness pay off, or, as Mitch McConnell might put it, “There are no absolute rules of conduct, either in peace or war. Everything depends on circumstances.” Actually, this quotation comes from Leon Trotsky’s autobiography, but he and McConnell aren’t so far apart. In the past few decades, the G.O.P. has turned into a party of permanent counter-revolution, and its leaders wage this campaign with a wanton disregard for established rules and norms that the old Bolshevik would have admired.
Exhibit A is McConnell’s refusal to hold confirmation hearings for Merrick Garland in 2016, purportedly on the grounds that he had been nominated during the last year of a Presidency. That unprecedented maneuver stole a seat on the Court for the Republicans. Four years later, in the last year of the Trump Presidency, McConnell shepherded the confirmation of Amy Coney Barrett, a Catholic member of a charismatic Christian group and a fervent opponent of abortion. On Friday, after Barrett’s vote had helped overturn Roe, McConnell hailed the ruling as “an historic victory for the Constitution.”
With the midterms slightly more than four months away, Democrats are hoping that anger over last week’s rulings will increase turnout and win over some wavering voters. “This fall, Roe is on the ballot,” Joe Biden said on Friday. With the overturning of Roe coming on top of the gutting of state gun laws, this response didn’t seem entirely adequate. Whatever happens in November, there is no immediate prospect of a change in the Court. Thomas is seventy-four and could conceivably stay on the bench for another decade. Alito, who wrote the contentious opinion overturning Roe, is seventy-two. Neil Gorsuch, Brett Kavanaugh, and Barrett—the three Trump appointees—are all in their fifties, and will likely still be on the Court twenty years from now.
Given this dire situation, it may pay Democrats to ask themselves what Republicans would do if roles were reversed. History suggests that they wouldn’t sit back and hope for a rescue by the voters. They would immediately go into attack mode: create a broad alliance of groups united in opposition to the Court, subjugate intellectual consistency to winning, and ruthlessly exploit any legislative or procedural powers they possess.
In theory, a Democrat-controlled Congress could now pass legislation restoring a version of Roe, and challenge the Court to strike it down. Given that the Party has only fifty votes in the Senate, it would have to amend or abolish the filibuster to do this, and, on Friday, Bernie Sanders reiterated his call for this very course of action. Referring to the G.O.P.’s elimination of the filibuster for Supreme Court nominees in 2017, which paved the way for the confirmation of Trump’s three appointees, Sanders said, “If Republicans can end the filibuster to install right-wing judges to overturn Roe v. Wade, Democrats can and must end the filibuster, codify Roe v. Wade, and make abortion legal and safe.”
Another option is to exploit Congress’s power to expand or reduce the Supreme Court—a power it has exercised six times before—and appoint more members to nullify the right bloc’s majority. At the start of the Biden Administration, some progressive House Democrats proposed legislation to do this, but it failed to gain the support of Nancy Pelosi, the House Speaker, or of the Administration. Resorting to a time-honored way of avoiding doing anything, the White House created an outside commission to review possible reforms to the Court. (The commission eventually issued a report that said, “The risks of Court expansion are considerable.”)
On Friday, some progressive Democrats, including Alexandria Ocasio-Cortez, resurrected the idea of expanding the Court. But accomplishing this goal would also require amending the filibuster, and it seems highly unlikely that Joe Manchin and Kyrsten Sinema would go along with it. In a pattern that has become depressingly familiar, the Democrats appear to be stuck—with an unrepresentative political system, a stacked Court, and their own divisions conspiring against them. But, if they are to prevent an activist high court from further tearing the country apart, they will need to overcome these challenges and play hardball. If they want some pointers on how it’s done, they can look across the aisle. ♦
