Monday, June 29, 2020

That Someday Court Majority

Talk to any Republican about Donald Trump's fitness for office and you will end up hearing the same response: "Sure, he's terrible, but we have to vote for him because of the Supreme Court." As this article from the New York Times pointed out last month, a large number of Trump voters are abortion voters who hate Trump. There is widespread belief among Republican voters that a vote for the Republicans is a vote against abortion. This might seem reasonable, as the party platform has been anti-abortion since 1976, the first platform after 1973's Roe v. Wade decision. But today, over 47 years later, in June Medical Services v. Russo, the Supreme Court ruled that the Constitution prohibits requiring abortion-providing doctors to have admitting privileges at a hospital within 30 miles. If this procedure were anything other than abortion, no one would bat an eye; what other internal procedure can be done outside a hospital and without the possible use of a hospital if things go wrong?

"And this is why we need to vote Republican!" Really? Let's look at that premise.

Justice's NamePresidentPresident's PartyReplacedR/D SplitRoe/Casey/Russo
William O. DouglasRoosevelt 33DemxxxxRoe
William J. Brennan, Jr.EisenhowerRepxxxxRoe
Potter StewartEisenhowerRepxxxxRoe
Byron WhiteKennedyDemxxxxRoe, Casey
Thurgood MarshallJohnson 36DemxxxxRoe
Warren E. BurgerNixonRepxxxxRoe
Harry BlackmunNixonRepxxxxRoe, Casey
Lewis F. Powell, Jr.NixonRepxxxxRoe
William RehnquistNixonRepxxRep 6-3Roe, Casey
John Paul StevensFordRepDouglasRep 7-2Casey
Sandra Day O'ConnorReaganRepStewartRep 7-2Casey
Antonin ScaliaReaganRepBurger*Rep 7-2Casey
Anthony KennedyReaganRepPowellRep 7-2Casey
David SouterBush 41RepBrennanRep 7-2Casey
Clarence ThomasBush 41RepMarshallRep 8-1Casey, Russo
Ruth Bader GinsburgClintonDemWhiteRep 8-1Russo
Stephen BreyerClintonDemBlackmunRep 7-2Russo
John RobertsBush 43RepRehnquistRep 7-2Russo
Samuel AlitoBush 43RepO'ConnorRep 7-2Russo
Sonia SotomayorObamaDemSouterRep 6-3Russo
Elena KaganObamaDemStevensRep 5-4Russo
Neil GorsuchTrumpRepScaliaRep 5-4Russo
Brett KavanaughTrumpRepKennedyRep 5-4Russo

* = replaced Rehnquist who replaced Burger as Chief Justice

When Roe was decided on 22 January 1973, the decision was 7-2. The two dissenters were Byron White and William Rehnquist. White was a Kennedy (Democrat) appointee, so only one dissenter was a Republican nominee. The court, however, was comprised of SIX Republican appointees. And at no time since then has the court NOT been composed of a majority of Republican appointees.

"Well, you know, Republican didn't always mean the same thing." Fair enough; maybe we shouldn't expect Eisenhower (Republican) appointees to guess party ideology 20 years into the future. So let's ignore William J. Brennan and Potter Stewart. But I think it's not out of line to expect post-Goldwater (1964) Republican appointees to reflect the anti-federal lean of the current Republican Party. So the three Roe-majority Nixon appointees don't support the thesis that Republican presidential votes lead to abortion restrictions. Switch those three votes, add in White and Rehnquist, and Roe's creation of a Constitutional right to abortion doesn't exist.

Again, maybe it's unfair to expect Nixon appointees to reflect later Republican ideology. The next Supreme Court justice was John Paul Stevens, a Ford (Republican) appointee. "Still not fair because it was 1975; the Republican Party didn't adopt an anti-abortion platform plank until 1976." Fine, give Stevens a pass, too. The next five justices were Republican appointees in the anti-abortion-platform era. That alone creates a majority. By Planned Parenthood v. Casey (1992), the court was comprised of eight Republican nominees and one Democrat nominee. The one Democrat nominee was Byron White. So if Republican presidents create abortion restrictions, Casey should have been 9-0. If we don't expect Blackmun to change his opinion, or Stevens to be bound by a then-future ideology change, it's still 7-2. And today, after nearly 50 years of anti-abortion Republican Party platforms, the court comprised of a majority of Republican appointees can't put together an anti-abortion court majority. In fact, while Republican presidents have been in office for 28 of the 48 years (58.3%), Republican presidents have nominated 10 of 14 Supreme-Court justices (71.4%).

If abortion wasn't an election issue, how would you vote? Because, despite what the Republican Party wants you to believe, abortion is not an election issue. They just get your votes by making you think that it is.

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