5 May 2022
Every Dark Cloud
by J.R. Thomas
A month ago, a week ago, President Biden must have been thinking things really could not get much worse. And low and behold, he seems to be right. Out of a potential major embarrassment, suddenly a silver ray of sunshine lit the dark skies over the White House.
The potential major embarrassment (and it could yet prove to be so) was that for the first time ever there was a leak from the Supreme Court. This is unprecedented and unexpected – and for that reason we must qualify the suggestion that it may produce that ray of sunshine. It is just possible that the leak is political and untrue, and is designed to bounce somebody or something into changing their mind. We must explain. The leak is that the Court is about to reverse the precedent of Roe vs Wade, the 1973 landmark legislation which created a general right, at a federal level, for a woman (or person with a uterus if you prefer) to obtain an abortion, at up to about 24 weeks from conception of the subject foetus. In the USA, being a federal nation, nothing is ever simple when it comes to legislation, and the individual states can impose their own laws concerning the right to an abortion, but speaking in the broadest terms, though they can make it very difficult, they cannot ban it completely.
Should the Supreme Court reverse Roe vs Wade, they would effectively transfer the final powers in such matters back to the individual states; and it seems likely that 26 states would then ban terminations except in very limited circumstances (such as within six weeks of conception or as a result of rape, for instance). Most of these states are in the south and west of the USA and are Republican controlled. Texas has just done this and effectively outlawed abortion although the legislation is being appealed and heading, pending the new revelations, to the Supreme Court. It should be said that the change rumoured by the Court would not prevent travel into a state with more liberal laws to obtain a termination, as is now the main option in Texas.
What has been leaked to and by the political commentary magazine Politico purports to be a majority draft opinion. (We should explain that Supreme Court decisions go through a fairly normal process of adjudication. All nine Justices then spend time discussing their views until each member has a position; at that point a member of the majority group will be appointed to draft the formal opinion; and when that is finalised, dissenting views will be drafted. Any Justice can change their position right up the point at which the majority judgement is formally issued.) The majority draft, said to be by conservative Judge Samuel Alito, criticises the original reasoning behind Roe vs Wade and reverses it, returning the power to the states, where it resided prior to 1973. It is, as lawyers are wont to say, an interesting point, but nobody is terribly interested in fine legal points of reasoning in this; they care, usually passionately, about the issues around termination. And, not surprisingly, an almighty row has already broken out, with a demonstration outside the Supreme Court on Monday night and much more to come, no doubt. It is possible that was the intent of the leaker, to bring pressure on the court to amend its position. But remember, this is a leak; Politico is neither right nor left but is known to be very mischievous and has got major things wrong before. It is possible that this is not a final draft, or even any draft, but an attempt to create trouble to change minds.
Or it could be an attempt to damage the Republicans, now in the run-up to the November midterm elections for Congress, which was until this broke out widely expected to give the GOP control of both houses, and thus turn Mr Biden into a lame duck President for the rest of his term until 2024. Joe’s ray of sunshine? If the leak report turns out to be well founded. Polling over the last few years suggest that around 70% of voters support Roe vs Wade and want no change in the present position. That obviously includes a lot of women voters and a lot of Republican voters and hands Mr Biden a strong issue at a very handy time. It is true that in those states that currently impose whatever measures they can to restrict women’s right to choose in this matter (and have said they will effectively ban abortion if handed back the power so to do) most show state voter majorities for their positions. But overall, nationally, the popular mandate is clearly the other way.
Already Mr Biden has said that women must continue to have the right to choose, as have many Democrat leaders, including Hillary Clinton. Suddenly, after all the disaster of Ukraine policy, Afghanistan, Covid19 policy, taxation, spending, wokery, drift in Washington, and the weakness of VP Harris (do insert any further disasters that come to mind) here with perfect timing is a strong cause for the President and the Democrats to make their own; one that will not loose them many votes but potentially yield a large number.
Even if this leak turns out to be false, it may do no harm to Mr Biden, who finally can wrap himself in feminist liberal covers and make threatening noises about what a Republican majority in Congress, or in the White House, might do. A Democrat majority is the only defence to a Supreme Court now made up of nine Justices, six right leaning – some leaning much further over than others. This has been a freak of age and presidents, where Messrs Trump and Bush were able to appoint many more new Justices than Messrs Obama and Bident, or than Mr Biden is likely to, unexpected events aside.
This may seem like a stroke of fortune for Joe, but it could turn out very much not to be, even if the leak is true. The danger in this disputatious cantankerous country, led by a man who seems to have lost the subtlety that once was one of his strengths, with another furious old man awaiting a possible return to the White House, is that the debate will become violent and deeply unpleasant, that things will be done and said that will make the national healing needed so desperately almost impossible. In such circumstances the only beneficiaries will be the violent fringes of both parties and outside them.
The Republicans, perhaps needless to say, are in an even more difficult position than Joe, with Mr Trump ever a more divisive figure and the two most likely alternatives to him as presidential candidates in 2024 both, like him, anti abortion, but leading a party which is probably pretty evenly divided on the issue. If these events represent a ray of sunshine for Mr Biden, he should remember that sunshine is dangerous stuff, and it is easy to get badly burnt.