So he faded. And by the time voters cast their ballots, the Supreme Court was actually more a matter of animation for Republicans. While 18% of voters said the Supreme Court was their most important issue and voted for Hillary Clinton, 26% said the same and voted for Donald Trump.
Not only did Senate GOP Leader Mitch McConnell’s (R-Ky.) bare-knuckle gamble pay off in allowing a Republican president to fill the seat of late Justice Antonin Scalia; Democrats have not demanded a quantifiable political price for this.
By overturning Roe v. Wade, the Supreme Court has now delivered to Democrats what appears to be an even more out-of-the-box campaign issue – and which the data shows could pay off and even is already paying dividends. But when it comes to precisely how to speak about the court itself — and how to harshly criticize an institution that could hamper Democrats’ agenda for years to come — Democrats have some decisions to make.
What has become abundantly clear in recent weeks is that Supreme Court opinions have become historically polarized.
A Pew Research Center poll released this month showed that 73% of Republican and Republican voters had a favorable opinion of the court, compared to 28% of Democrats and Democrats. This 45-point gap is the largest on record since at least 1987.
An NBC News poll taken last month showed Republicans had a positive view of the court by a 36-point margin, while Democrats had a negative by a 51-point margin.
Likewise, the court’s decision on abortion appears to be one of the most unpopular on record – and on an issue with huge implications for much of the population. Most polls show about 6 in 10 Americans disapproving, with the NBC poll showing a 51% majority disapproving “strongly”. And it is difficult to find an analogue. However, polarizing cases like Bush versus Gore and Brown v. Board of Education were at the time, CNN’s Harry Enten recently noted that polls at the time have shown that they have the support of the majority.
(About the best comparison I could find: the 1989 Supreme Court ruling that flag burning was protected First Amendment speech. A Washington Post poll showed that nearly 8 Americans on 10 disagreed, including 62% “strongly”.)
What’s more, the new polls show that some of the groups most upset with the court have traditionally been high-turnout groups — women and more educated voters — suggesting those voters are there for Democrats to get to the polls if they do. play well. A total of 64% of Democratic-leaning voters say the court has too much power, and nearly half of them – 46% – have a strongly unfavorable view.
There are few emotions more politically powerful than anger. The question for Democrats is how to channel and capitalize on that anger — and, by extension, what remedies to offer.
President Biden, the White House and Democratic leaders have denounced the decision to Dobbs vs. Jackson. But they have halted some of their allies’ attacks on the legitimacy of the court itself.
Vice President Harris referred to it this weekend as “activist court‘, while Biden tied the Supreme Court to the more conservative wing of the GOP and denounced what he called a concerted attack on Americans’ rights.
“We cannot allow an out-of-control Supreme Court, working in conjunction with extremist elements of the Republican Party, to take away our freedoms and personal autonomy,” he said in July.
He added last month: “The Supreme Court and MAGA Republicans have no idea about the power of women in this country. And they will soon find out – they will find out.
But some on the left wished Biden would go further directly challenging the legitimacy of the court and making the composition of the court a more central and pressing issue. Biden and Harris’ comments certainly indicate the tribunal is an extension of the Republican political movement, but they pale in comparison to Senate Majority Leader Charles E. Schumer’s (DN.Y.) 2020 campaign against the tribunal. or others recent comments from prominent liberals. Biden hasn’t exactly made it a central and cohesive part of his campaign pitch.
The danger of going further after the court itself – and not just its abortion decision – is twofold.
The first is that it invites the following question: what are you going to do about it?
There are no ready, short-term answers for Democrats. Packing the court, like atomizing the filibuster, is a supposed solution often oversimplified with uncertain potential consequences; it would be very difficult to execute and it could actually hurt Democrats down the line. (It’s also something Biden has repeatedly refused to embrace.) The alternative could be to push for more modest reforms, like term limits — a path that is also politically very difficult. Another possibly unsatisfactory option would be to tell Democrats that their votes matter in nullifying the 6-3 Conservative majority – when one day, finally, the court seats open up.
The second pitfall is that Biden has often preached about the sanctity of institutions — and seems to believe it. Institutionalists adhere to this view because they see a danger in people who view these institutions as illegitimate. If the entity responsible for offering the final say on our laws is effectively struck off by half the country, it opens Pandora’s box both politically and democratically.
Biden could view the court’s decision as very bad. But the court’s legitimacy rests on the idea that people don’t necessarily view judges as an extension of political power. To claim that judges are impartial, apolitical beings is too idealistic, but how hard you question that ideal is a matter of degree.
There is no doubt that Democrats could reap political benefits from the Supreme Court’s decision over the next eight weeks without making the court itself so central to its campaign; it’s a much simpler political sell job than the complex process that led to the blockade of Garland. But the appeal of an effective boogeyman is often strong in politics. And the way Democrats talk about the court during the long 2022 campaign could reverberate for a long time.