Will GOP judges split America in two?

For decades, Republicans railed against “activist judges” who “legislate from the bench.” But that was before they succeeded, during the Trump presidency, in stacking the U.S. Supreme Court with conservative ideologues.  

Now Republicans are cheering on a claque of rightwing justices who seem eager to strip Americans of their right to reproductive freedom. Hypocritical? Utterly. Calculated to sew more discord in a deeply divided nation? Check.

“We hold that Roe and Casey must be overruled,” declares a leaked draft opinion written by Justice Samuel Alito and agreed to by Justices Clarence Thomas and the three Trump appointees, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. At issue is the court’s landmark 1973 Roe v. Wade ruling establishing a constitutional right to abortion, and its 1992 Planned Parenthood v. Casey decision affirming that right.  

In their Senate confirmation hearings, however, the Trump judges gave no hint that they were prepared to strike down Roe and Casey. On the contrary, they professed respect for Supreme Court precedents and assured senators they wouldn’t put their personal views above their duty to judge whether laws are constitutional. Kavanaugh called a woman’s right to an abortion “settled law,” and Gorsuch agreed, adding “I accept the law of the land.”

Evidently, these judges weren’t leveling with the American people, to put it mildly. Perhaps they learned from the man who nominated them that the political penalties for being caught in lies these days are weak to non-existent.

Nullifying Roe would allow any state to severely limit or outlaw abortion immediately. Thanks to the demagogic antics of Republican governors in Florida, Texas and other states, we know what that would mean — bifurcating the United States into a red zone, where women could face harsh criminal penalties for terminating a pregnancy, and a blue zone, where abortion would continue to be legal.

In a novel twist on secession, Republicans are setting up their own cultural confederacy in which abortion is illegal, voting is made difficult, immigrants are unwelcome, gender is immutably assigned at birth, upsetting books are banned, religion reenters the public square, and the claims of racial and other marginalized groups are ignored. 

It’s all reminiscent of another antebellum doctrine: concurrent majorities. This was the theory Sen. John C. Calhoun of South Carolina devised to protect the South’s “peculiar institution” – slavery – against the “tyranny” of majorities. The idea was to give parochial or sectional interests a veto over national laws.  

The historical irony, of course, is that the Republican Party arose just before the Civil War to preserve the union. Now Republicans have become the party of states’ rights and cultural disunion. Apparently, they’ve forgotten Abraham Lincoln’s admonition that a house divided against itself cannot stand.

There’s nothing conservative about rolling back a right to abortion that’s been constitutionally guaranteed for nearly 50 years. Alito’s draft is radical and anti-democratic in that it would foist the fundamentalist views of evangelical Protestants (and a minority of Catholics) on the majority of Americans who support abortion rights.  

A CNN poll last fall found that 60 percent of Americans believe the court should uphold Roe v. Wade, while just 27 percent want it overturned. It also showed that a majority of voters oppose the notorious Texas “abortion vigilante” law that would ban most abortions after 15 weeks of pregnancy, and allow private citizens to sue anyone who helps a pregnant person get an abortion or who performs the procedure.

According to the Pew Research Center, a solid majority of Americans (59 percent) believe abortion should be legal in all or most cases; 39 percent say it should be illegal in all or most cases.

If the Supreme Court nullifies Roe, it would be the high-water mark of social conservatives’ kulturkampf against the diverse, multicultural democracy America has evolved into over the last half-century. At the same time, it would ignite a ferocious public backlash in a country more accustomed to seeing individual liberties expanded than shrunk.

Democrats, who have fretted that their voters are less motivated than Republicans, suddenly have the galvanizing issue they need to ensure a robust turnout in the midterms. That could make a big difference in a key battleground — America’s suburbs. Democrats have a tenuous hold on power in Washington thanks to inroads they made in 2018 and 2020 among college-educated suburbanites repelled by Trump’s chaotic and divisive presidency. Republican candidates running this fall in these crucial and quintessentially moderate swing districts will have to answer for their party’s hostility to reproductive rights.

In truth, however, many voters aren’t deeply engaged in the abortion fight. Their views on the issue are far more nuanced than those of pro-life and pro-choice activists shouting at each other through bullhorns in the street.

Pew notes that most Americans reject an absolutist stance on abortion. Only 34 percent say abortion should be legal in most, but not all, cases, while 26 percent say it should be illegal in most, but not all all, cases. Voters, in short, are open to negotiation and compromises that don’t try to force zero-sum demands on supporters or foes of abortion.

No one has better captured this public sentiment than former President Clinton, who called for making abortion “safe, legal and rare.”

Instead, the Supreme Court’s rightwing judicial activists are on the verge of imposing the least popular form of abortion absolutism on the country. That would be a Pyrrhic victory that splits America in two, and eventually boomerangs on Republicans. 

Will Marshall is president and founder of the Progressive Policy Institute (PPI).