Two weeks ago, a conservative majority of the Supreme Court elected not to stay the enactment of SB8, a Texas law banning abortion after six weeks without exception. This law charges its enforcement to private citizens, who are empowered under the statute to sue any person that aids, abets or otherwise facilitates an abortion after six weeks. Successful vigilantes can collect a cash prize of $10,000. Since the Supreme Court allowed the law to take effect, SB8 has caused many abortion providers in Texas, wary of incurring devastating financial liability, to stop providing services altogether. Millions in the state have no access to necessary healthcare if they are or will become pregnant.
Of course, this particular law was passed by a fanatically right-wing Texas state legislature and signed by an intellectually demonic Texas state governor, but let’s be clear: SB8 only stands because of the work of the conservative legal movement’s decades-long, wildly successful efforts to pack the Supreme Court with ideologues committed to grinding the constitutional right to abortion access into dust. Unless and until Senate Democrats get serious about reforming both the Trump-packed Supreme Court and also the Trump-packed lower courts, SB8 is just a preview of the many dangerous, fascistic attacks on constitutional rights to come.
I do have some follow up questions, though: Where is the reciprocal progressive legal movement? There’s a whole, entire political party in this country that is not the Republican Party, and that in fact usually opposes the Republican Party. Anyone heard from them? Where, one might ask, are the Democrats?
Since the ruling came down, some of them have correctly identified the constitutional crisis unfolding on top of pregnant people’s autonomy in Texas. President Joe Biden called the Court’s decision “an unprecedented assault on a woman’s constitutional rights under Roe v. Wade,” and promised a “whole-of-government” response to safeguard abortion access. Minnesota Senator Tina Smith pulled no punches in the days after the ruling, saying that the Court “has been captured by the Federalist Society and by right-wing elements of the Republican Party” and announcing her support for a bill to expand the Court. Several senators have proclaimed their support for passing federal legislation to protect abortion rights. But as a party, there seems to be no plan for seizing on the opportunity to push for urgently-needed Court reform measures that SB8 so clearly illustrates.
This is a confounding and embarrassing failure. Democratic politicians should be capitalizing on the shock of the Supreme Court’s SB8 ruling because it speaks directly to their base. Nearly 60% of women registered voters identify with or lean toward the Democratic Party, and people of color overwhelmingly vote Democratic, too. Clearly the party still needs this spelled out for them, so: If you make a Venn diagram of people most affected by the SB8 ruling and people who vote for Democrats, you’ve got a lot of overlap. Given that the Court just allowed Texas to obliterate Roe for the foreseeable future, Democrats should be screaming from the rooftops about the need for Court reform right now.
Instead, many of them are acting like the Court did not just functionally overturn Roe for millions with a shadow docket ruling in the middle of the night. New Hampshire Senator Jeanne Shaheen, for example, has vowed to “defend Roe v. Wade and end these life-threatening attacks against women and their bodies.” She does not support plans to expand the Court. Nevada Senator Catherine Cortez Masto recognized the Court’s decision as “incredibly dangerous,” but has previously stated her opposition to Court expansion. New Hampshire Senator Maggie Hassan said the decision would have “devastating consequences.” Arizona Senator Mark Kelly said the opinion “threatens abortion rights nationwide.” Colorado Senator Michael Bennet said he’d “never stop fighting for reproductive justice for every single person.” These lawmakers are on the record opposing Court expansion. This party appears to have no plan after the Supreme Court just slapped them in the face.
What gives? One obvious reason is that the Democratic Party is absolutely addicted to bringing just their two twiddling thumbs to a political gunfight. As the old saying goes, the party that lives by the reliable voter base that has no other viable option dies by six conservative maniacs who will strike down any legislation you pass quicker than you can say “climate change.”
As an excuse, Democrats might cite public polling that has previously shown mixed feelings about Court reform. Interest in expansion proposals increased after the death of Justice Ruth Bader Ginsburg late last year, but waned as Democrats declined to press their advantage. In an April Reuters/Ipsos poll, 38 percent of respondents favored Court expansion; in an August Marquette University poll, that figure had increased to 48 percent. Among Democratic voters, support for adding seats is consistently strong. But this history of murkiness could partially explain the lack of cohesive messaging from Senate Democrats—the perception that people aren’t clamoring for Court reform right now.
Why am I getting emails from Democratic PACs talking about the fight to protect abortion access during next year’s midterm elections? Bitch, I live in Texas right now.
I have this to say in response: I do not care about lukewarm public reactions to confusing questions about unfamiliar terms like “Court-packing,” and I do not care that Democrats might fear wasting political capital on a temporarily unpopular issue. Honestly, grow up. Interest in Supreme Court expansion has ticked up since the SB8 decision. Even if Court reform isn’t broadly popular right now, this should be such an easy slam dunk for the party, because you know what is and has long been broadly popular among the American public? Abortion access. Pregnant people’s access to vital healthcare. Roe v. Wade. Bodily autonomy. These bedrock political values are under attack by a far-right pathological minority that has a stranglehold on the Supreme Court. Why am I getting emails from Democratic PACs talking about the fight to protect abortion access during next year’s midterm elections? Bitch, I live in Texas right now.
On some level I have accepted that this awful system—the kind of system where the consensus of five people can disassemble abortion access for millions—will sometimes churn out terrible political outcomes. I know how Amy Coney Barrett and Neil Gorsuch intend to use their positions as justices. I know what I’m getting when people like Samuel Alito and Brett Kavanaugh have decision-making power. They are part of a conservative legal movement that began this reactionary project a long time ago. Today, they get to celebrate the fruits of their morally bankrupt labor.
What I don’t understand is a political party having the power to change the status quo and…just not using it. Right now, Democrats can reform this awful system and protect abortion access, stop attacks on voting rights, and pass urgently-needed legislation to address climate change. They have the power to change a Supreme Court that is primed to strike down any of those efforts. What they lack is the political will to use it. Until they start treating an unabashedly right-wing Court as a political opponent that needs to be defeated, SB8 is nowhere near the bottom of what this Court can accomplish.
