High court appears poised to hand Trump another 2024 attack line with Roe on ropes
Justice Sotomayor warns court has become a political body. That would only intensify under a second Trump term.
ANALYSIS — Rising costs of everyday items. Supply chain woes. An influx of migrants. A chaotic and deadly exit from Afghanistan. And now, all indications suggest, major curbs on abortion rights.
All are issues Donald Trump is poised to use as attack lines on President Joe Biden, should the former president mount another White House run. In fact, Trump already has been using the economic and foreign policy matters to hammer his successor during television interviews and daily emails that have replaced his banned Twitter account.
The six conservatives who make up the majority on the Supreme Court signaled Wednesday that they appear ready to hand him a major win on an issue, abortion, that fires up his Make America Great Again base. And though the high court could craft a decision that does not completely nix the landmark decision, the truth-stretching Trump inevitably would hold rally after rally boasting that he built the court that banned abortion.
The 45th president has yet to weigh in on Wednesday’s high court arguments, during which conservative justices — including his three picks: Amy Coney Barrett, Brett M. Kavanaugh and Neil M. Gorsuch — provided thinly veiled hints about their intentions to undo Roe v. Wade. But he sent his third Supreme Court nominee, Barrett, clear signals on how he wanted her to rule if the matter reached the highest court.
“It’s certainly possible,” he told Fox & Friends Weekend in 2020 after nominating her. “And maybe they do it in a different way. Maybe they’d give it back to the states. You just don’t know what’s going to happen.” Most observers predicted that the 6-3 rightward tilt of the court once Barrett was confirmed by the Senate would likely deliver just what Trump floated on his one-time favorite cable news show.
The section of Trump’s website that lists rallies has only these words: “No events scheduled.” But it is not hard to imagine him back onstage in a 2024 battleground state praising what he has called his three justices for ending Roe. In fact, abortion was on his mind during an Oct. 9 rally in Iowa, a key early presidential primary state and one he captured in the general election in both 2016 and 2020.
Standing before a lectern with a “Save America” placard, Trump slammed Democrats for pushing a provision in their still-unpassed social spending bill that he said would amount to “forcing taxpayers to fund the far-left extreme abortion agenda, ripping babies from their mother’s womb right up until the moment of birth.”
Fact check: No Democratic politician has proposed such a gruesome idea.
‘Gift from God’
Still, the audience that night in Des Moines cheered, an indication of just how much anti-abortion rhetoric resonates with the MAGA base.
“In the Republican Party,” he added, “we believe that every child is a sacred gift from God.”
At the White House, Biden has yet to weigh in on Wednesday’s Supreme Court arguments. But his press secretary, Jen Psaki, called the Mississippi case that looks to bring down the 1978 decision a “grave threat to women’s fundamental rights.”
A day later, she told reporters Biden “is committed to working with Congress to codify the constitutional right to safe and legal abortion as protected by Roe,” adding, “Every American deserves access to health care, including reproductive health care.”
There is not much Biden can do but absorb Trump’s blows if, as expected, Roe is overturned. He lacks the votes to “codify” its protections into a new law even with slim majorities in each chamber — and there’s a strong possibility Republicans win both next November.
Years of polling data suggest the issue has fired up Republican voters to cast ballots more than upholding Roe has gotten Democratic ones to the polls. But the court’s expected decision also could provide a jolt to the latter in both the 2022 midterms and 2024 presidential race.
The 2024 winner could put multiple jurists on the country’s premier judicial body. Justice Stephen G. Breyer, a liberal, is 83. Clarence Thomas and Samuel A. Alito Jr., both conservatives, are 73 and 71, respectively.
But some leading congressional progressives do not want to wait and see if Biden or Trump would pick their replacements, should any of them vacate their seats.
“We can’t trust Donald Trump’s conservative court to uphold the right to abortion,” Congressional Progressive Caucus Chair Pramila Jayapal tweeted this week. “That’s why we must end the filibuster and pass the Women’s Health Protection Act.”
Biden, during a CNN town hall in early November, raised the eyebrows of progressive activists who want to end the filibuster to move voting rights legislation. He said nixing the Senate’s 60-vote rule for legislation could be used for “maybe more” matters important to his party.
“We’re going to have to move to the point where we fundamentally alter the filibuster,” said Biden, who did not mention abortion or Roe as one of those “more” matters.
‘I am pro-life’
The politics of the issue are tricky, especially in a country where the dwindling number of swing voters in a handful of unique states decide presidential elections. Gallup has found that nearly 60 percent of voters want Roe upheld; the organization also has found that nearly 50 percent of Americans want some limits on abortion access. Trump was a late arrival to the anti-abortion camp but has used his membership to score political points with far-right voting blocs.
Despite the former reality television and real estate executive’s checkered history of multiple divorces and a list of sexual misconduct allegations, more than 80 percent of regular church-attending white voters supported his bids for the presidency. A big reason why: his repeated vows to roll back Roe.
“I am pro-life,” then-GOP nominee Trump declared in October 2016 during a debate with former Secretary of State Hillary Clinton, the Democratic nominee that year. “That will happen, automatically in my opinion,” he added when asked by moderator Chris Wallace if the abortion decision would be overturned if he became president, saying the matter of whether a woman could end a pregnancy should “go back to the individual states.”
Some legal analysts and Democrats bemoaned what they heard Wednesday, saying the court was veering too far into the political realm. Liberal Justice Sonia Sotomayor went so far during arguments as to wonder aloud if the court could “survive” public perceptions that it is no longer an independent entity.
“Today, Justice Sotomayor asked her fellow Justices to consider the stench of politics that would taint the Court if it reverses Roe & upholds a law explicitly passed by Mississippi legislators following Trump additions to the Court,” tweeted Joyce Vance, a former U.S. attorney. “Turns out, Mississippi isn’t the only one.”
Trump does just about everything explicitly. Expect his use of Roe’s demise on the campaign trail to be explicit — and his calls for GOP-controlled state legislatures to further capitalize on the conservative high court he built to be the same.