Heads exploded at the Washington Post yesterday thanks to the oral argument at the Supreme Court in Dobbs v. Jackson Women’s Health Organization, the abortion case. Evidence of the explosion was scattered all over the Post’s front section.
In the opinion pages alone, there were four op-eds about the case, plus an editorial. One of the op-eds was by Billie Jean King. Her piece was called “My abortion story shows why the Supreme Court must save Roe.” The person King would have given birth to was unavailable for comment.
King’s piece is devoid of legal analysis. A person’s abortion story says nothing about whether Roe was correctly decided or whether it was so incorrectly decided as to warrant being overturned as a matter of constitutional law, stare decisis notwithstanding.
King can be excused. She’s an ex-athlete, not a legal analyst or pundit. Unfortunately, legal analysis makes only a cameo appearance in the op-eds of Ruth Marcus and Dana Milbank.
Milbank frets that the decision in Dobbs will “enshrine a new principle in American jurisprudence: Justice for he who yells the loudest.” That’s probably the dumbest take on the case I’ve seen. Judicial hostility to Roe has several explanations. Yelling isn’t one of them.
But given how loudly Milbank screams (“Roberts court’s stench will live forever,” he rants), he might believe that yelling helps. Indeed, over the years, the Post has done all the yelling and cajoling it can to cow conservative Supreme Court Justices into “growing in office.”
The strategy has probably worked to a degree. But it can’t be counted to carry the day every time. The Supreme Court giveth and, on rare occasions, the Supreme Court taketh away.
The Post’s news writers have a different approach to influencing the Court in this case. They try to show that a decision adverse to abortion interests will throw a lifeline to Democrats in the midterms. The New York Times has an article to the same effect.
Mr. Dooley said “. . .the Supreme Court follows the election returns.” Apparently, the Post and the Times hope the Court will anticipate them.
Would a decision sharply adverse to abortion interests really make much of a difference in the midterms? Ed Morrissey doesn’t think so. He writes:
Midterms are a referendum on first-term presidents, not Socratic exercises in the court’s chambers. If the court overturns Roe in June, perhaps that might change, but even that’s wishful thinking. The likeliest immediate impact from overturning Roe would be that abortion would remain legal in almost every state, with more restrictions in states where abortion is less popular.
And that assumes that most voters have abortion as their primary issue. Overturning Roe might impact that as well, but most voters will have the economy at the top of their minds, as that impacts them every single day. That’s especially true given the split on abortion in the electorate, and the lack of support for the Casey position of almost unrestricted abortion on demand.
There’s lots of truth in this analysis. However, I can easily imagine a June 2022 decision energizing Democrats, who are quite likely to need energizing.
Even energized, the Dems are almost sure to lose control of the House. But it’s conceivable that the outcome of Dobbs will tilt one or two Senate races to the Democrats, and that control of the Senate will turn on the outcome in those races.
Conceivable, but not likely.
Ed’s comments focus on the midterms. The decision in Dobbs might play a bigger role in the 2024 presidential race. The conventional wisdom, which is difficult to dismiss, holds that suburban women hold the key to that contest. Maybe a Democratic candidate vowing to appoint pro-abortion judges would gain substantial mileage with that cohort.
On the other end, as Ed suggests, whatever the outcome in Dobbs, abortion will still be liberally available to women in the suburbs of Philadelphia, Detroit, and Cleveland. Will swing female voters there vote Democrat because that’s not the case for women in Mississippi?
Probably not. Nor, obviously, should the Supreme Court worry about whether they will.
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