As I’ve pressed the case for centering the 2022 election around the House and Two More Senators (“Roe and Reform”), one of the most consistent rejoinders I get is, “What’s the point? The Court will just throw out the law.” Or, “There is no point unless you reform the Court at the same time.” These are reasonable questions. But they’re wrong both as politics and law.
Here’s the short version: The near-term threat of the Court rejecting such a Roe law is real but overstated. But “Roe and Reform” is the best strategy regardless of what the Court decides to do. The details — the long version — are important, though. So let’s go through them.
The country is now in the midst of a long struggle with a corrupt High Court. It’s the anchor of minoritarian rule and the country can’t move forward with this Court’s corruption or pretensions. That struggle won’t be settled by a single decision, a single law or a single election. Here the issue is abortion. But the story is the same with guns, regulation, election law, health care generally and a bunch more. The current battle is part of that larger context and we should see it that way.
The near-term threat of the Court tossing out a future Roe law is real but overstated. Both as law and politics, it’s a very different thing to rule that there is no constitutional right to an abortion and decide that Congress has no right to make a law making abortion legal. Over time I have little doubt the Court would try to whittle away at such a law. Right off the bat, it’s much less clear.
Just as a matter of political principles and how to live life, it’s a grave mistake to start pulling your punches because of what your opponents might do. That’s just defeatism, internalizing your opponents’ pretensions to power. You lose every game you don’t show up for. I mean, why win this election when the other guy might just win the next one? This is all debilitating and stupid learned powerlessness. But the logic goes beyond just ethical and dignified ways to approach law, politics and life generally. There are several paths around which the current battle over abortion and reproductive rights plays out. But in each case focusing this election around passing a Roe law in January 2023 is the best way forward.
Some people say that there’s no point passing a Roe law if you don’t reform the Court at the same time. That’s wrong. The clearest tools Congress has to rein in a corrupt Court are by either removing this issue from the Court’s appellate jurisdiction or simply adding more Justices to the Court. Both are clearly within Congress’s constitutional powers. At the moment, unfortunately, the political will and support to do those things does not exist. If you insist on making it a package deal — both pass a Roe law and bar the Court from overturning it at the same time — the outcome will be coalitional infighting and stalemate, the result of which will be nothing happening. That means no Roe law and no election win that would even make it possible. How do you build support and a constituency to rein in the Court if it doesn’t exist now? Easy. Basically have the Court strike down a Roe law.
It’s worth walking through just how that scenario plays out. That scenario would mean that the Court overruled Roe and that this triggered a backlash in which what seemed like the certain losers in the midterm election came back and won the election on the basis of that backlash. With that mandate, the new Congress passed a law making Roe‘s protections the law of the land. Then immediately the Court concocted a new set of purported founding principles that determine Congress wasn’t allowed to do that.
This is what I mean when I say that even though the risk of the Court striking down a Roe law is overstated, if you do think reforming the Court is necessary the clearest path to doing so is to pass such a law, dare the Court to strike down and then take away that power once they do so.
The country generally and blue or center-left America particularly is in the midst of a crisis of confidence and legitimacy over the tether connecting political participation to concrete results. Minoritarianism not only lets the minority rule the country; it also saps the political will of the majority. That’s why a clear promise and specificity about the kind of win that is needed is critical.
If you sweat the details about national politics you know that no Congress has ever passed big legislation in a tied and highly polarized 50-50 Senate. On paper Democrats have unified control of the White House and Congress. But the margins are so small that that control is more nominal than real. In practice, Senate Democrats have a 48 seat caucus for everything but the Senate calendar and the scheduling of votes. But if you watch politics from a distance and don’t know the details it looks very much like Democrats are screaming that all these things need to be done when they’re already in charge of everything. That has seemed like the story of the last eighteen months. Great clarity is required to repair that damage.
Doomsaying and defeatism can be a comforting refuge in the face of great challenges. That’s what the “what’s the point?” crowd is indulging in now. They’re aided in that effort by wrecker elements in the sectarian left who want to undermine and destroy the very idea of a functioning center-left party of government. The deck is currently stacked against the clear verging-on-overwhelming majority of the country that supports Roe. But the impediments definitely can be overcome. The key is simply to lay out before voters that the power is in their hands and just what is necessary at the ballot box to pass the law in January 2023.