Analysis |

Roe v. Wade Is Now the GOP and the Supreme Court vs. America

The U.S. Supreme Court is siding with a distressed, angry minority taking legitimate but detestable advantage of a skewed political system. The bad news: things can still get worse with the current 6-3 conservative majority

alon pinkas
Alon Pinkas
Protesters facing off over abortion rights, outside the U.S. Supreme Court in Washington on Wednesday.
Protesters facing off over abortion rights, outside the U.S. Supreme Court in Washington on Wednesday. Credit: EVELYN HOCKSTEIN/REUTERS
alon pinkas
Alon Pinkas

This is what you get when five of the nine U.S. Supreme Court justices were appointed by presidents (George W. Bush, Donald Trump) who failed to win the popular vote and were confirmed by a Senate representing less than 50 percent of America. You get an unrepresentative Supreme Court, appointed by an unrepresentative president, confirmed by a patently unrepresentative Senate, making decisions and issuing rulings affecting Americans in 2030, 2040 and 2050, based on contemporary political and cultural fault lines.

You get a Supreme Court out of sync with a culturally changing America, cheered on by a minority party.

To all Democrats who were perplexed and angry about how decent Republicans could vote for and tolerate a con man like Trump, and were bewildered how evangelicals could support a man whose depravity is so antithetical to their core values, the answer should now be clear.

It was always about the judiciary, always about appointing judges – to the Supreme Court and all available positions and slots on the federal circuit.

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And what does this reality produce? The very possible and imminent overturning of the landmark 1973 Roe v. Wade Supreme Court decision, which ruled that the Constitution protects a woman’s liberty to choose to have an abortion without regulation or government restriction, both of which infringe on her liberties. This would make abortion illegal in 26 states and possibly a further nine in due course. Fifteen states have laws protecting abortion rights, but those would surely be challenged on the grounds that they are contradicting a Supreme Court ruling.

Welcome to America. Or rather, to one of the two Americas: the majority blue and/or the minority red.

Demonstrators protesting outside the U.S. Supreme Court in Washington on Tuesday after a draft opinion was leaked that would overturn Roe v Wade. Credit: Alex Brandon/AP

The country that landed on the moon 53 years ago, that freed Europe from Nazi Germany and accumulated some 400 Nobel prizes is also the country that exercised racial segregation until the mid-1960s, sanctifies the travesty called “the Second Amendment” that caused – directly or indirectly – 45,000 gun-related deaths in 2020, and generously gifted the world Donald Trump.

The possible overturning of Roe v. Wade – a final decision is expected in June, but a majority opinion draft was leaked Monday – is obviously and specifically about abortions. In reality, though, it is the manifestation of a much broader schism in America. A culture war whose contours have been clearly delineated over the past 20 years. A division between Blue America – urban, multiethnic, gender-tolerant, educated, young, female-majority – and Red America – rural, white, predominantly Christian, lower middle class, conservative.

One is transformative; the other restorative. One is about a limitless, diverse America; the other claims to be the old, “real” America. One claims the future; the other claims it is being robbed of the past by condescending “coastal elites.”

Demographically, Blue America is a majority of approximately 55 percent, although that is not necessarily reflected in election cycles because of various swing groups across the population. But in terms of Roe v. Wade, the majority supporting the status quo is even higher: around 70 percent. Yet the Supreme Court of the United States sides with the minority. In fact, it is siding with the tyranny of a distressed and angry minority taking legitimate but detestable advantage of a skewed political system.

Conservative Republicans have wanted this for years, but preferred that it be postponed until after the congressional midterm elections in November. Democrats feared this for years, but hoped that if it is inevitable, it should at least happen before the congressional midterm elections in November.

Republicans want a defining culture war and a major victory thanks to the system’s flaws. Democrats want the issue to frame the 2022 elections and possibly extend the confrontation to 2024. They will count on huge voter turnout among both women and voters under the age of 30.

And while this truly is about women’s reproductive rights and liberties, you cannot escape the politics of it all.

The Supreme Court, SCOTUS, isn’t the worst distortion in America’s unrepresentative and dysfunctional system. That dubious honor belongs to the U.S. Senate, the world’s so-called greatest deliberative body.

The sacrosanct, unamendable, constitutional principle of “one state equals two senators,” combined with demographic and geographic trends, created an enduring absurdity. California, with a population of almost 40 million, has two senators. Wyoming, population 590,000, also has two senators. So when a Supreme Court nomination is brought to the Senate for confirmation, California and Wyoming have equal power – despite the former having 68 times more inhabitants as well as being the world’s fifth largest economy.

While America is moving toward greater diversity and multiculturalism, this distortion will invariably grow. Currently, the 50 Democratic senators in the split Senate represent 177 million Americans, while the 50 Republicans speak for 156 million. By 2040, it is estimated that 70 percent of Americans will reside in 15 states. They will be represented by 30 senators. The other 35 states, mainly rural ones, will be represented by 70 senators.

Demonstrators protesting outside the U.S. Supreme Court in Washington on Tuesday after a draft opinion was leaked that could potentially overturn Roe v Wade. Credit: Alex Brandon/AP

In fact, by 2040, 50 percent of Americans will live in just eight states: California, New York, Texas, Florida, Georgia, Illinois, North Carolina and Ohio, represented by 16 senators. Eight states is also 16 percent of the United States.

This made a lot of sense given the political circumstances, context and demographic spread of 1789, but it makes zero sense in 2022.

It is too early to assess the political implications of a decision that has actually yet to be made. But anyone who believes the 6-3 conservative majority in the Supreme Court will stop at Roe v. Wade and not extend to climate regulation, gay rights, gun rights and immigration, should reconsider that wishful notion.

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