The Supreme Court heard arguments this morning in Dobbs v. Jackson Women’s Health Organization, a case that has pro-lifers excited that they have a real chance, after decades of struggle, to overturn Roe and Casey. The oral arguments, linked below, featured a very active Clarence Thomas. I will leave the legal analysis to the lawyers for the moment at least, but wanted to speak today to the politics of this case.
To a surprising degree, I believe the political establishment in Washington, and perhaps across the country, is dramatically underestimating the importance of this case. This is typical — they frequently discount the electoral importance of the abortion issue — but there is another aspect that seems obvious to pro-lifers, but the consultant and leadership class doesn’t seem to understand: Nothing will be the same after this case no matter what.
The assumption of the leadership class is that politics only goes into a period of upheaval should SCOTUS rule in favor of Mississippi’s 15 week ban, while if they side against Mississippi, things essentially stay the way they’ve been. Pro-lifers will be disappointed and frustrated, Republican Senate candidates will take hold of that frustration and run with it into 2022, while Democrats will warn how close they came to losing and raise a ton of money on the issue. Nothing really changes, life goes on — status quo.
That analysis is reasonable if you’ve been observing abortion politics at a remove, which most media figures and consultants and staff have for ages. It’s also totally wrong. Whatever happens with this case, it presents the major test of the conservative legal project. Pro-life voters have held their tongues, done their loyal work, and elected pro-life Republicans and trusted choices for nomination with a transactional mind on achieving victory above all else.
They trusted the process. If it lets them down, it will put a definitive end to the question of whether the next nominee to the Court should be a judge or a politician with a record. They won’t accept any promises any more. They’ll demand Mike Lee. The Court will become openly political in a way it has not been historically, and candidates will have to endorse known quantities in order to get any hearing.
This is one more aspect of the post-Trump reality — his list was just the beginning.