A Political Earthquake
Who leaked the Supreme Court decision overturning Roe v. Wade? What does it mean? What happens next?
I’m Michael A. Cohen, and this is Truth and Consequences: A no-holds-barred look at the absurdities, hypocrisies, and surreality of American politics. If you received this email - or you are a free subscriber - and you’d like to subscribe: you can sign up below.
Last night, the political world was shaken by a political earthquake that hit ten on the Richter Scale. According to a leaked draft opinion obtained by Politico, the Supreme Court intends to overturn Roe v. Wade and strip women of the constitutionally-protected right to abortion.
In thinking about the impact of this potential decision, I harkened back to one of my favorite quotes from Robert McNamara and the excellent documentary “Fog of War.”
War is so complex it's beyond the ability of the human mind to comprehend all the variables.
Obviously, a judicial decision to strip away abortion rights is not the same thing as war. But what I like about this quote is that it’s a humbling reminder that some events are immune from practical analysis and that the host of variables in play makes it virtually impossible to pass judgment on them (at least right away). I honestly have no idea the full political implications of overturning Roe v. Wade. From a policy standpoint, I am more confident (unfortunately) in my prediction that outlawing abortion in half the country will do enormous damage to women, particularly poor women and those of color. In a country with some of the highest infant and maternal mortality rates in the world, no paid family leave, no subsidized childcare, and millions of Americans without access to health insurance, it is a recipe for disaster.
But here are a few thoughts to chew over as we wait for the Supreme Court to make a formal decision.
Quite simply, we don’t know the answer. Many assume that the leaker is a liberal clerk who wanted to warn Americans about what is coming.
It’s also possible that the person who leaked did so because they are close to Justice Roberts, who according to news reports, appears likely to side with the liberal minority. Perhaps this was an effort to put public pressure on members of the Court’s conservative block to switch their votes.
Or maybe someone close to Justice Alito, who wrote the opinion, leaked it because the conservative majority has lost votes to overturn Roe, and they hope this will put pressure on them to do away with it. Or perhaps the Alito contingent wanted to lock votes in place. Leaking the decision would make it more difficult for one of the conservative judges to change their vote or soften the decision.
I’d probably lean toward the first explanation, but it’s pure speculation. And frankly, at this point, we still don’t know what will happen. Maybe public pressure will have an impact. Alito’s opinion was written in February. Votes on the Court may have shifted since then. Only time will tell. All we know is that this opinion exists, and the Court is probably more likely than not to overturn Roe.
The Leak Is A Big Deal
It’s not the biggest deal about yesterday’s news, but it’s still a big deal that someone leaked this opinion. It’s pretty much never happened before. There’ve been cases where the likely outcome was revealed but never an entire opinion. That it happened shows a complete breakdown of trust and adherence to norms on the Court. It’s also a disturbing reminder of how politicized the nation’s highest judicial body has become. Leaking this opinion is, almost certainly, intended to put pressure on the Court or to rile up those who have a stake in the decision.
Doing so turns the Court into yet another battlefield for political conflict. To be sure, the Court has become a delegitimized and increasingly lawless institution. The Court’s conservative bloc has run roughshod over the law and long-standing judicial norms for several years now. This leak simply removes any question that the partisan battles the Court is actively provoking are also happening inside the house.
What’s The Political Fallout?
Since the Politico story broke last night Democrats have practically fallen over themselves to bash the Court’s potential decision and pledge to make this a campaign issue in the midterm elections. Republicans are focusing on the leak itself and not the substance of the decision. That’s what we in the business call a tell.
You’d think a 50-year effort to overturn Roe finally coming to fruition would be a reason for celebration by Republicans. But instead, many of them are acting like the dog that caught the car. From a political standpoint, there’s simply no question this is a better political situation for Democrats than for Republicans. Abortion in America is pretty popular, and most Americans oppose making it illegal in nearly all cases. Indeed, a significant majority of Americans characterize themselves as pro-choice.
For Republicans in safe red districts, the political impact of the decision will be minimal, but in blue and purple districts, it’ll be a bit different. In places like Michigan, Wisconsin, and Arizona, where abortion would immediately become illegal if Roe is overturned, the political advantage has likely shifted to the left. In Pennsylvania and Virginia, where Republican-dominated state legislatures will likely push abortion bans, it could become a contentious political issue. I’m particularly curious about Florida, where Republican Governor Ron DeSantis will probably come under enormous pressure to pass a complete abortion ban. Does that hurt his chances at re-election? According to recent polling, 68 percent of Floridians support Roe, and only 23 percent oppose it. Of course, that doesn’t mean DeSantis will lose, but it adds a new set of variables to the equation.
The fact is, none of us know the answers to these questions because we simply don’t know how this will play out and the extent to which it energizes pro-choice voters. There isn’t much evidence that it’s reshaping the political terrain in Texas, where a 6-week abortion ban has been in place for several months. It didn’t impact the Virginia governor’s race even though Democrat Terry McAuliffe ran millions of dollars worth of ads attacking his opponent’s pro-life views. Of course, that was before Roe was overturned (if it is). We don’t know how galvanizing this moment will be for Democratic and pro-choice voters. And even if it is galvanizing, we don’t know if it will outweigh people’s economic concerns, which seem to be the critical driver of voter sentiment in this election cycle.
Overturning Roe will help Democrats raise a ton of money, and party candidates will do everything possible to make it the number one issue in November. Maybe it works; maybe it doesn’t. Time will tell.
Is There A Legislative Fix?
Funny you should ask:
So this is unlikely to happen. Joe Manchin and Bob Casey of Pennsylvania are both pro-life. On the flip side, Susan Collins and Lisa Murkowski are both pro-choice. Would they blow up the filibuster to codify Roe? I tend to think not. And I have no idea what Kyrsten Sinema would do, but I generally assume it will be the wrong thing. So I don’t think a legislative fix is going to happen. But in a weird way, that’s a good development for Democrats because they can go to voters and say, “elect enough Democrats in the House and Senate, and we can protect abortion rights.” I’m not saying that would work, but it certainly would be a compelling midterm message.
What’s Going On
Read Justice Alito’s draft opinion here.
Maybe Ruth Bader Ginsburg should have heeded the advice to quit the Court before a Republican president could name a replacement who would undo her life’s work. Many people are upset that I’m making this argument on the day after it looks like Roe will be overturned, but I make no apologies. Ginsburg had a choice, and she had agency. People repeatedly warned her that this exact situation would unfold concerning Roe if she didn't step down while there was still a Democrat in the White House and Democrats controlled the Senate. Instead, she chose to stay on the Court, even though she was in her 80s and had been diagnosed with cancer twice. Ginsburg doesn’t get a pass. She made an incredibly selfish choice, and now millions of American women will pay the price.
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