Jose Luis Magana/AP Photo
Abortion rights activists protest outside the Supreme Court in Washington, June 24, 2022.
Perhaps the biggest obstacle to Supreme Court reform, such as adding new justices, stripping its jurisdiction from certain laws, or abolishing judicial review entirely (as I argued here), is its relative legitimacy. Most Americans are taught in school that the Court is a key part of the American political system, and it has hitherto escaped the mass condemnation that has engulfed Congress, where approval registers about 17 percent. As of mid-2021, approval of the Court registered about 60 percent, likely thanks to its legalization of gay marriage in 2015, and the lingering glow of the heroic Warren Court decisions striking down Jim Crow apartheid.
But it seems the Court’s decision to strike down Roe v. Wade has brought it down into the toilet of unpopularity, along with the rest of the American government. The same pollster from 2021, Marquette University, found approval of the Court falling to just 38 percent immediately after the Dobbs decision.
On the Court reform question specifically, a recent Data for Progress poll of likely voters also found a substantial majority in favor of limits to the Court’s power. It found 54 percent in favor of the idea that “The Supreme Court should not be able to override settled precedent and public opinion to make decisions about the law of the land. The Court needs more limitations on its authority so it doesn’t overstep its power,” while just 34 percent disagreed.
Democrats ought to seize this opportunity.
The conservative movement is running into problems with abortion all over the place. After Dobbs, the number of women registering to vote surged, as did Democrats’ advantage among this group. Recently, a bill in South Carolina to ban nearly all abortions stalled in the state Senate despite a Republican supermajority in the legislature, because five Republican state senators (including all the Republican women) joined with Democrats to filibuster the bill. It is reportedly doomed for now, though a somewhat more modest restriction bill did pass. This is South Carolina we’re talking about, home of one of the most hard-right legislative majorities in the country, where Republicans outnumber Democrats by nearly 2 to 1 in both chambers.
In Michigan, Republicans attempted to get a ballot initiative protecting abortion rights stripped from the midterm ballot on transparently fraudulent grounds, only to get overruled by the state supreme court by five votes to two. Then in Kansas, again a pretty red state, a constitutional amendment to remove abortion rights went down by nearly 20 points despite Republicans intentionally wording it in a confusing manner and scheduling the vote on a low-turnout primary date.
It is plainly obvious that the conservative movement and a substantial portion of the American population have been grossly misled by anti-abortion messaging. The median position on abortion, roughly speaking, is that it’s not exactly good, but that it should be widely available early in the pregnancy, and universally available in cases of rape or incest, or if the health of the mother is threatened, or if the fetus is medically nonviable. In practical terms, this covers virtually all abortions—a fact that has been buried by decades of hysterical anti-abortion propaganda.
It is plainly obvious that the conservative movement and a substantial portion of the American population have been grossly misled by anti-abortion messaging.
But now that abortions are de facto banned in huge swaths of the country, conservatives have crashed headlong into reality. Stories are published almost every day of the gruesome consequences of Dobbs: a preteen rape victim being forced to flee to another state to get care, chronic disease patients being cut off from their treatments because they might interfere with pregnancy, a woman suffering a miscarriage who nearly died while doctors scrambled to figure out if she was close enough to death to be eligible for care, and on and on. Americans are realizing that abortion is simply part of any reasonable standard of medical care for all women.
Republicans’ boiling hostility to families that don’t live up to right-wing moral values is also on display. Even when Sen. Mitt Romney (R-UT) added work requirements to his child allowance bill (thus cutting out the poorest families who need the money the most), he got just two Republican co-sponsors in the Senate, one of whom is retiring this year. An Alabama woman who was arrested and admitted to smoking pot on the day she found out she was pregnant was thrown in jail for three months—in part because she didn’t actually have a drug problem and so didn’t qualify for rehab. Despite developing a uterine complication that caused her to bleed, she was forced to sleep on the floor of her cell. Another Alabama mother with two kids was jailed for months directly after giving birth when she tested positive for drug use. That’s the Party of Family Values all right.
Returning to the question of restraining the lawless Supreme Court, it turns out this is a classic wedge opportunity for Democrats. The Data for Progress poll finds 34 percent of Republicans support reining in the Court’s power, while just 13 percent of Democrats have the opposite view. And one doesn’t need to endorse adding more justices to the Court or ending judicial review to address this problem. The Constitution stipulates that the “Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make,” thus indicating that Congress can limit its jurisdiction. It has done so many times before—including, remarkably enough, in the Inflation Reduction Act, which says “There shall be no administrative or judicial review” of some of the drug price control measures included in the bill.
There’s a path to preserve reproductive rights here. Mobilize the majority of Americans who are appalled at what the Supreme Court has taken from them, hold the House and win enough additional Senate seats to build a majority in favor of a carve-out of the filibuster on this question, and then pass a national abortion legalization with language stripping the Court of jurisdiction. It’s an uphill battle, but not remotely impossible.
