Government

This Opinion Isn't About The 2016 Election, It's About Decades Of Democrats Dropping The Ball

It's natural to want to find one wrong turn... but it's way worse than that.

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Hillary Clinton Testifies Before House Select Committee On Benghazi Attacks

(Photo by Chip Somodevilla/Getty)

There are a lot of folks out there trying to recast this impending abortion opinion as a referendum on the 2016 election. It’s all the fault of those “reasonable” Republicans failing to stand up to Trump. Or the independents. Or the liberals who weren’t appropriately excited about Hillary Clinton to add to her totals.

The problem with thrashing about to pin responsibility on some single turning point is that it ignores how everything about the Court’s descent into lawlessness long pre-dates that election. America is just reaping what it’s sown over the course of decades of judicial neglect. So stop trying to fix blame and recommit to doing something productive.

As a legal principle, the 2016 election excuse stands much closer to the “last clear chance” doctrine than more modern conceptions of comparative negligence. But there’s a reason torts tends to embrace comparative negligence: it provides a lot more accurate picture.

Sure, Clinton would’ve halted the immediate crisis — assuming she could have succeeded in getting reelected post-COVID. She needed to get reelected, of course, because John McCain — one of those “reasonable” Republicans — had already told the world that Republicans and their sizable Senate majority were in lockstep to just leave seats vacant and prevent Clinton from appointing any justices. So whoever won in 2020 was likely to have those same 2-3 vacancies to fill anyway.

But what about the Spring of 2016, when Democrats refused to play hardball and just recess appoint Merrick Garland once the Senate abdicated its constitutional duty to actually provide “advice and consent”? The Senate had the power to vote “no” but didn’t want hearings and a vote because it would’ve made them look bad. But the White House wasn’t obligated to let the Senate get away with it. What would’ve happened after a recess appointment? A lawsuit? That went to SCOTUS? With Garland deciding on his own appointment because there are no real recusal rules? Screwy for sure, but entirely plausible — instead, Democrats just shrugged and assumed they’d win in November.

The “Garland gambit” is extreme, but that’s largely because it was also a “late in the game” strategy.

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As a contrast, consider the early Obama presidency when Ruth Bader Ginsburg and Steven Breyer could have retired with 60 Democrats in the Senate to shore up those seats for years.

Hell, put aside the brief filibuster-proof majority of 2009. At any time before 2015, the Senate could have actually considered some kind of rational filibuster reform and had the votes to replace those seats. It could have considered mandatory senior status term limits for justices or even Court expansion at that point too if it bothered to consider what was so obviously barreling down the road.

It’s fashionable today to criticize legal analysts who swore that reproductive rights would die through the “death of a thousand cuts” rather than an outright overruling of Roe, but that’s actually immaterial. It was obvious at least as early as 2009 that abortion rights would be destroyed one way or the other if the GOP ever held the White House and Senate at the same time again. But the Democratic strategy was, I guess, win in perpetuity rather than take steps to rein in the judiciary through measured checks and balances? Great plan!!!

Especially after a 5-4 Supreme Court had already decided a presidential election with ad hoc reasoning!

What about any of the times when Democrats could have passed national abortion rights protections and instead leaned on Roe rather than publicly take a concrete policy stance on an issue that an ever-increasing majority of Americans actually support? Democrats couldn’t even get together to take the Hyde Amendment out of a budget until 2021! And it’s not an accident that Alito’s draft opinion takes pot shots at gay rights too, an issue the Supreme Court resolved after Democrats played two decades of footsie with Don’t Ask Don’t Tell and convoluted civil union rhetoric.

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Or all the years the Democrats built a federal judicial roster of “reasonable” — there’s that word again — corporate lawyers and former prosecutors unwilling to “rock the boat” while Republicans built a depth chart of radical ideologues? Don’t worry, as all of this happened, Democrats continued to lionize the power of the judiciary, just priming the superweapon while refusing to consider what unaccountability would look like in the wrong hands. For what it’s worth, there were people out here warning everyone not to do that back before election day 2016.

Yes, this specific opinion — probably — isn’t getting circulated today if Clinton won in 2016. But it was still coming. Or its “thousand cuts” alternative that does functionally the exact same thing was still coming. Not for nothing, there’s a decent argument that the latter would be worse because at least people are TALKING about this draft opinion while the persistent erosion of rights since Casey has mostly passed without notice.

Maybe, now that people are focused on this, instead of building a strategy around winning a series of constitutionally stacked elections forever, consider actually making the public case for protecting these rights, or reforming the Senate, or reforming the Court. Instead of running from an issue just because it might not seem like a winner in the polls, try making the argument and see what happens. Earlier today, I saw a noted commentator suggest that Democrats couldn’t win on this issue because even though Roe is popular, it’s not a top priority for many voters. Has anyone considered that this might have something to do with decades of Democrats cabining it off as “a Supreme Court thing” to shelter themselves from any political flack for it?

Liberals put all their eggs in a fundamentally reactive, little-c conservative institution as the last line of defense for issues they were largely too scared to come right out and loudly defend politically. Conservatives figured that out years ago and decided to take it over. At every off ramp along the way, the Democratic Party deferred.

So, what’s it going to be this time?

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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