These days, the Supreme Court shapes the election returns

And the abortion decision could backfire

The Biden administration is taking a series of steps aimed at minimizing the impact of the Supreme Court's Dobbs v. Jackson Women's Health Organization decision.  (Tom Williams/CQ Roll Call file photo)
The Biden administration is taking a series of steps aimed at minimizing the impact of the Supreme Court's Dobbs v. Jackson Women's Health Organization decision. (Tom Williams/CQ Roll Call file photo)
Posted June 28, 2022 at 6:00am

More than a century ago, humorist Finley Peter Dunne offered shrewd observations on politics in the Irish dialect of the mythical Mr. Dooley. Along with “politics ain’t beanbag,” Mr. Dooley is best remembered for saying, “Th’ Supreme Coort follows th’ election returns.” 

But after Friday’s long-expected abortion decision, it is now more accurate to say, “The Supreme Court shapes the election returns.”

The political reverberations from the court overturning Roe v. Wade will take weeks to sort out. But the early polling suggests that the decision may prove to be the Democrats’ salvation in a tough off-year election environment.  

While much of the news coverage has focused on the politically passionate, it is revealing to look at the views of self-described “independents.” A CBS News/YouGov poll, conducted over the weekend, found that 62 percent of independents disapproved of the decision and 41 percent of these swing voters considered themselves “scared” by the Supreme Court’s actions. 

Even more telling were the ripple effects from the implicit threat in Clarence Thomas’ concurring opinion wanting to also overturn Supreme Court precedents allowing gay marriage and the sale of contraceptives. 

In the CBS/YouGov poll, 58 percent of independents thought it “likely” that the constitutional right to same-sex marriages would be rolled back, and 55 percent of unaffiliated voters had the same pessimistic view about future “access to birth control.” 

Suddenly, thanks to Thomas, the issue at stake is larger than abortion alone. 

The birth control issue has proved potent in politics before. In fact, the 1965 Supreme Court decision in Griswold v. Connecticut, which overturned a state ban on birth control products, was an important marking point in Joe Biden’s career. 

During the 1987 confirmation hearings on the Supreme Court nomination of conservative Judge Robert Bork, Biden, as the chairman of the Senate Judiciary Committee, attacked the nominee for wanting to intrude into the bedroom because he opposed the Griswold decision. This proved to be a pivotal argument that helped prompt the Senate to reject Bork after a contentious set of hearings. 

The widespread protests last weekend destroyed one theory — that the early May leak of Justice Samuel A. Alito Jr.’s draft opinion would make the actual decision overturning Roe anticlimactic. Instead, the coming battles in the states over abortion laws almost guarantee that the issue will still be creating headlines in November. 

Two days before the Supreme Court ruling, I was interviewing Lucas Kunce, the likely Democratic Senate nominee in Missouri, at an outdoor coffee shop in Independence, near Harry Truman’s home. 

For nearly an hour, Kunce, a 39-year-old Marine running as a populist, talked about economic inequities. But as we were winding down, Kunce switched to the other issue that could shape his uphill race — abortion.

Anticipating the imminent end of Roe, Kunce pointed out that Missouri’s preexisting abortion law did not have any exceptions for rape or incest. “Missouri voters, they’re not cool with the no-rape exception,” he said. 

Harking back to the 2012 Missouri Senate race, when Republican Todd Akin actually talked about what he described as “legitimate rape,” Kunce recalled, “Akin was winning, and then he ended up losing by 15 points because that was just too far.” 

Another parallel comes to mind — the landmark November 2003 decision by the Massachusetts Supreme Court legalizing same-sex marriages. At a time when many Democrats could barely muster the courage to support civil unions, the Massachusetts ruling was a bombshell.

Rather than fading from the news, the legalization of gay marriage in the home state of Democratic nominee John Kerry was still a major issue in November 2004. Voters in 11 states passed constitutional amendments or laws banning same-sex marriage. 

(These provisions were overturned by the 2015 United States Supreme Court ruling in Obergefell v. Hodges, which made full marriage rights the law of the land.) 

The most important of these 2004 referendums was in Ohio, the state that single-handedly decided the presidential election. Ohio voters, in a 62-to-38 percent landslide, approved a state constitutional amendment banning gay marriage.

Many in both parties speculated after the election that the gay marriage referendum cost Kerry the state, which he lost by 118,000 votes. At minimum, the gay marriage vote helped mobilize social conservatives, since ministers were allowed to preach from the pulpit on the issue, which was ostensibly regarded as nonpartisan.

Of course, there is no guarantee that the abortion issue will be the decisive factor this November. But what is certain is that its political impact will be far greater than if Chief Justice John G. Roberts Jr. had prevailed in somehow cobbling together a more limited decision that curtailed abortion rights but retained the remnants of Roe. 

For four decades after Ronald Reagan made Republicans the anti-abortion party, the GOP had the best of both worlds. It solidified the support of social conservatives without ever having to face the electoral consequences.  

But this far-right-wing court (which might be known as the Alito Court) has changed the equation. On almost every topic, the empowered majority (largely created by Mitch McConnell and Donald Trump) has given a Bronx cheer to public opinion in its quest for doctrinal purity. 

As Congress was passing the most far-reaching gun legislation in three decades, it was revealing that the Alito Court was dramatically expanding the scope of the Second Amendment. It was as if the massacres in Buffalo and Uvalde happened in an alternative universe light years away from the cloistered realms of ultraconservative jurisprudence.

Often in politics there is a day of reckoning when a branch of government goes too far. That’s why the Alito Court may be the worst thing that happened to the Republicans on their supposed way to winning back Congress.

Walter Shapiro has covered the last 11 presidential campaigns. He is also a fellow at the Brennan Center for Justice at NYU and a lecturer in political science at Yale. Follow him on Twitter @MrWalterShapiro.