Divided SCOTUS decides when Congress doesn’t

 

Gordon L. Weil

The U.S. Supreme Court looks like a divided legislature.

Seven of the nine justices expressed their sharply differing opinions in two recent Covid vaccination decisions. Only Chief Justice John Roberts and Justice Brett Kavanaugh, both conservatives, joined in the majority in both cases, and they alone refrained from making a comment.

Despite appearances, the central issue was not Covid vaccination. The rulings were about the role of the federal government and of the Court itself.  They were political, but more about personal beliefs than party affiliation.

The Court decides on what the law means, applying long-established rules of interpretation.  Justices are influenced by their views in applying those rules.  These views may go beyond partisan politics; they may be based on broader conservative or liberal ideology.

Justices making “political” decisions is nothing new.  John Marshall, the early and perhaps the most influential chief justice, favored a strong federal government. Between 1801 and 1835, his decisions always promoted this objective, aimed at influencing the young nation’s political development.

In both recent Court decisions, conservatives and liberals each expressed their political judgments.  All agreed on the serious threat to public health and the high personal cost of Covid-19, but that’s all.

In one case, six conservative justices interpreted the law narrowly, ruling that Congress had not given the Occupational Safety and Health Administration the power to require vaccinations in large companies.  They opposed an administrative agency exercising broad power without clear congressional approval.

Congress itself might have adopted such a mandate or given OSHA that explicit power. In effect, the Court found that Congress could have acted, but didn’t.  The Court has decided in major cases, like Roe v. Wade, when Congress didn’t, but this time the majority would not fill in the blank.

The three liberal dissenters had no doubt that Congress had given OSHA the necessary authority.  They concluded that the Covid crisis was so acute that the Court could interpret the law to help halt the spread of the virus.

The second case produced a majority of the three liberals, plus Roberts and Kavanaugh.  A simple majority of five controls the Court.  They ruled that federal funding for hospitals gave the government power to attach conditions, including a vaccination requirement for the medical staff. 

The conservative dissenters opposed a role for the federal government and found no authority for Congress to attach such conditions.  Kavanaugh split from his fellow conservatives and immediately came under blistering right-wing attacks for his independence.

In effect, conservative justices had turned against Marshall, the historic conservative who had promoted a strong federal government. Instead, they asserted that individual states have the power to fight the virus.

Behind its decisions, the Court wrestled with the question of whether Congress was doing its job. Its debate about what Congress meant highlights the failings of the legislative branch, which is supposed to set policy.  It’s no mistake that its powers compose the first Article of the Constitution.

In fact, Congress is not a co-equal branch; it is the first among equals.  Article III assigns the Supreme Court judicial powers, but “with such exceptions and under such regulations as the Congress shall make.”  It can also limit presidential powers.

When it fails to pass laws addressing public issues, Congress leaves it to the president and the Court, increasing their political power.  When the justices are drawn into making major political decisions, the Court’s neutral objectivity may suffer. 

If people believe it is just another political body, its authority can be weakened.  Roberts has been trying to maintain respect for the Court as an impartial body that should stay out of politics.  His positions in the two cases might be intended to reveal his sense of judicial nonpartisanship.

Both decisions were “by the Court” and unsigned. Technically, they did not end the cases, but left the final blows to lower courts.  The Court increasingly uses such quick procedural decisions, known as its “phantom docket” to make major rulings.  Chances for careful consideration among the justices are lost.

The media reported that the result of the decisions was to limit the scope of President Joe Biden’s vaccination policy, which could have political effects on his presidency.  But it paid less attention to the implications of the decisions that went beyond his political fate or even vaccinations.

The ongoing inability of Congress to resolve issues by making tough decisions undermines the democratic system.  Much of the reason is the Senate filibuster, which halts bills by requiring 60 votes to consider them.  Only a simply majority of senators is needed to approve the lifetime appointments of new judges.

If the Court increasingly serves as the federal legislature, then the main purpose of presidential and congressional elections may come down to picking the people who pick the justices.   

Biden should reach out to Republicans, not only Manchin

Gordon L. Weil

Republicans may suffer from a political split personality.

On the eve of the first anniversary of the assault on the Capitol, Sen. Ted Cruz (R-TX) called it a “violent terrorist attack.”

The next day, after a Fox personality humiliated him, charging, “You told that lie on purpose,” he backed off what he called his “mistake.”  He had erred, he said, because he sought to defend against Democrats and the media “trying to say that all of us are terrorists.” 

His first statement could be the voice of a deeply conservative but fair-minded Republican.  His retraction could reveal a politician fearful of offending the GOP establishment, now almost entirely taken over by former President Trump.

Cruz’s public debate with himself symbolizes the crisis of American government.  The Republican Party has undergone a major transformation, inherent in Cruz’s overnight shift, that may threaten the traditional political system.  Instead of seeking compromise, it exploits constitutional loopholes to block the Democrats.

President Biden has wasted much of the momentum of his election victory by failing to understand the Trump GOP’s unwillingness to serve as the loyal opposition.  He mistakenly gambled that, as in his early Senate days, the two parties would work within an agreed system.

Biden and most congressional Democrats concluded that his victory was a rejection of Donald Trump, which they hoped the Republicans would concede.  That could open the way to adopting new economic and social policies, including many promoted by the Democrats’ progressive wing.

Biden met with some initial success.  But, even without accepting Trump’s false election claims, Republicans mostly remained more loyal to Trump Republicanism than to the preservation on the traditional political system.  Besides, even some Democrats were wary of Biden’s most progressive proposals.

Biden has now dropped his bid for bipartisanship.  In his insurrection anniversary speech, he recast his 2022 political strategy.  No longer could he seek to win enough support to pass his most ambitious social and economic proposals.  Instead, he went on the attack.  His willingness to abandon the filibuster to fight GOP voter suppression is part of this new effort.

The unyielding Republicans have led Biden to make this year’s campaign a referendum on Trump.  The conciliatory president, who had appeared weak even to some of his supporters, became much tougher and more partisan.  His campaigning could be more like the confrontational Trump than the affable Biden.

Nothing reveals the state of the political order better than Maine.  Republican Sen. Susan Collins, once seen as a leading moderate and no friend of Trump, has become a loyal hardliner on most key issues.  She, too, shows a split political personality.

Democratic Rep. Jared Golden, a moderate who holds the Second District swing seat, advises Biden to settle for what he can get from Sen. Joe Manchin, his party’s moderate leader.  At least the president could see some of his program adopted, disappointing the progressives, but better than complete failure this year.

Collins and her GOP allies won’t yield to Biden.  With his congressional leaders, he won’t yet accept Golden’s counsel, but keeps fighting for policies they cannot pass.  The deadlock has become dangerous.  Former President Jimmy Carter, himself a Democratic moderate, worries about “losing our precious democracy.”

The time has come for Biden to change course. He needs to test whether the GOP split personality has any political value. Instead of focusing on Manchin, he should work on a moderate deal with some GOP senators not engaged in this year’s elections.

He could try calling together a small, bipartisan group of senators. If he engaged in good faith talks with a commitment to back an agreement they might reach, it would be worth seeing if progress is possible.  Members of the group would have to agree on a legislative package, stick to it and become the swing voting block by refusing to vote for anything else. 

Biden would have to make significant concessions to the GOP to get this deal. It would be far less than he wants, but probably more than he can otherwise get. 

Even a limited success could improve his leadership rating and give the Democrats a better chance of holding onto congressional control.  Without that control after this November’s election, Biden is not likely to accomplish much in the last two years of his term.

This effort could have an even broader effect. It might encourage conservative Republicans who believe their party must do more than simply block any Democratic proposal.  Rather than a new party, a new bipartisan, moderate and pragmatic coalition could be the goal.

If the democratic system is truly in danger, it could be revived by a practical effort that gives its survival a higher priority than divisive political games. 

"Quiet diplomacy' fails again; Olympic Committee backs China's genocide

Did you ever hear about “quiet diplomacy?”

Maybe not.  After all, it’s supposed to be quiet.  Also, it doesn’t work, at least not as intended.

It is meant to work when countries, facing heavy pressure, change their policies without having to make embarrassing public concessions. It fails when those applying the pressure get nothing for concessions they make to encourage a quiet deal.

The International Olympic Committee has acquired the reputation of being an historic failure in using quiet diplomacy.  It has just failed again with China, which is about to host the 2022 Winter Games.

Its first classic failure was the 1936 Olympic Games held in Berlin under Hitler and the Nazis.  The choice of Berlin may have been made in the hope that Germany would drop its anti-Semitic policies. Germany obliged by covering its objectionable public signage for a couple of weeks.  But American Jewish athletes were kept from competing.

The Olympics gave Nazi Germany the appearance of being an honorable member of the international community.  With these credentials, it carried out the Holocaust, the attempt to kill all European Jews, and the massacre of millions of Russians and Poles.

The IOC’s quiet diplomacy was carried out with little conviction.  It almost certainly knew it was legitimizing Hitler, which helped pave the way for Nazi genocide.  Genocide occurs when a government tries to end the existence of a group of people simply because of their membership in that group.

The IOC was not alone.  Money meant more than principle for some U.S. companies.  IBM sold Hitler equipment to identify Jews in the population. During World War II, Coca Cola stayed in business there and created a new German wartime brand called Fanta.  Ford Motors also remained.

After World War II, the United Nations was created to foster worldwide cooperation aimed at preventing any new genocidal regime, like the Nazis.  In 1948, U.N. members adopted the Universal Declaration of Human Rights.  Though not a binding law, it was an agreed standard of national behavior.

The Declaration recognized that genocide was a crime against humanity. Even if it took place within the borders of a single country, the world community would have a legitimate interest in fighting it.

In 2008, the IOC sponsored the Olympic Games in China.  As a result, that country gained in prestige, shifting the world’s focus from its human rights violations to its lavish athletic show.  It made sure it could win the most gold medals.  At the same time, its control extended to foreign journalists covering the events.

Once again, instead of influencing the host country, the IOC was used.  The Committee is almost entirely financed by the proceeds of the Games, so it was enriched by the lavish show.

In 2014, Russia, with a history of oppressing minorities, hosted the Winter Games.  Like China, it won the most gold medals.  Then, it was found that many Russian athletes had doped their way to winning.  Unchecked, Russia seized Crimea from Ukraine in 2015. 

Now, the IOC has again made China the Games’ host, anticipating big profits from its choice.  To do so, it had to ignore genocide, China’s attempt to wipe out its Muslim minority by imprisonment, abortion, sterilization and “reeducation.”  Meanwhile, there’s little doubt China will again win the most golds.

The Committee no longer claims that it is pursing quiet diplomacy.  Its chairman merely asserts that as an international body, it must be politically neutral.   To repair the self-inflicted damage and possibly to save itself, it awarded the upcoming games, without competitive bidding, to France, the U.S. and Australia.

China is ramping up aggressive moves to become the dominant world power.  It builds illegal military bases on false islands in the open ocean, ends democracy in Hong Kong and threatens Taiwan.  Echoes of Berlin.  But the Games must go on. 

The American consumer has unknowingly supported its genocide.  The U.S. market has become heavily dependent on cheap Chinese products.  But last month, Congress and the president banned imports from the region where repression is taking place.  The bill was strongly opposed by some American companies.

"Many companies have already taken steps to clean up their supply chains," said Sen. Marco Rubio (R-FL), an author of the bill. "For those who have not done that, they'll no longer be able to continue to make Americans -- every one of us, frankly -- unwitting accomplices in the atrocities, in the genocide that's being committed by the Chinese Communist Party."

President Biden has barred U.S. officials from attending the Games.  Chinese officials say that violates the Olympic spirit and they are right.  It violates the IOC’s false neutrality, its version of that spirit.

China also claims its genocide is its internal affair.  The world has heard that one before. 

What drives inflation? Electric rates rigged against consumers

Gordon L. Weil

If you pay the electric bill, you’re in for a shock.

In the electric business, it’s called “rate shock” and it occurs when rates suddenly increase to the point where some customers can’t pay their bills.

It’s here, now.  The electric business makes sure the companies who provide the fuel, produce the power and own the wires are fully compensated.  The system passes the buck and the buck stops with the customer.

Rates increase.  The reasons why reveal the anatomy of inflation. 

Can’t regulators protect customers?  That’s the theory, but it doesn’t work, because the game is rigged. An unjustified belief that the free market will set prices fairly plus well-meaning government policies that pile costs onto customers make it difficult for millions to pay their bills.

Sometimes the upward pressure on power and wires costs come together, beyond the control of regulators.  Oil and gas companies, renewable energy promoters, electric utilities and legislators can all make that happen.  Despite token representation, customers can’t stop it.

This is not only a local issue.  To be sure, Maine monthly bills are shooting up by about $40 and they will soar elsewhere in the U.S.  In England, they are forecast to climb by 56 percent. 

This wasn’t supposed to happen.  The industry was partly deregulated.  As a result, the cost of power was expected to decrease thanks to competition. The cost of the wires, then the smaller part of the bill, would remain under federal and state regulation. 

The cost of fuel used for generating power would continue to be set by the market.   That market is under the control of the fuel producers, mainly located in the Middle East, like Saudi Arabia, or in the American Southwest.  They try to charge all the customers can bear. Flip a switch and you’re boosting their income.

The current price jump is mainly due to an increase in the cost of fuel.  There may not be enough natural gas to meet demand.   A hot summer meant natural gas that would have gone into storage for winter went to power air conditioners. 

Also, the U.S. exports natural gas.  If we prefer to have Europe depend on American rather than Russian supplies, that comes at a cost to U.S. customers, some of whose winter gas goes overseas.  In a world market, other participants naturally jump on the upward price spiral.

The results could be serious.  With inadequate gas supplies, New England, where half the power is fueled by natural gas, faces possible rolling blackouts.  Nobody realized that regional energy policy was really set by the natural gas companies.

Renewable power sources like wind, solar, and hydro plus nuclear offer more price stability.  But they face opposition claiming they are unreliable, harm fish passage or spread radiation risk.    Even as the costs of non-fossil resources have fallen, bringing increased reliability and safety, they still struggle to gain against subsidized coal, oil and gas.

Part of the problem for renewables is the cost of transmission lines.  The resources are often sited far from main customer centers.  That means new lines must be built. When government mandates more use of wind and solar, it silently raises rates to cover the cost of new lines.

Maybe not so silently. The federal government favors renewables by offering transmission owners handsome profits on their investments.  State regulators allow lower profits for the distribution lines that deliver power locally.  No wonder utilities prefer to build high voltage lines and let residential service suffer.

An alliance has developed between the federal and state governments that adopt pro-renewables policies and the transmission owners who can increase their gains by building new lines.  The costs fall on most customers.

The biggest customers enjoy advantages that other customers don’t get.  They receive their power at high voltage and contribute little or nothing to the cost of distribution.  They are strong enough to make their own favorable deals with power suppliers.

Fuel costs, new transmission lines linked to new renewables, and better deals for bigger customers affect rates.  Electric rates also include aid for lower income customers and the costs of regulation. Electric utilities may even recover from customers their legal costs in arguing for rate increases.

Federal and state lawmakers have the power to improve this system.  When governments mandate policies, they should provide financial backing for their decisions.  Instead, they include some costs in rates that should be covered by taxes. It is easy to let customers pay more, promoting inflation.

There are a couple of positive signs.  President Biden’s proposed investment in new transmission  would come from taxpayers, and utilities could not earn a profit on it.

And consumer-owned public power, which serves 28 percent of the national market from Los Angeles, California, to Houlton, Maine, is non-profit. Its rates are lower. 

“The Emperor has no clothes” – the naked truth about vaxing, voting and hacking

 

Gordon L. Weil

An old tale, written by Hans Christian Andersen, tells the story of a foolish emperor who is swindled into believing that he wears the finest garment, visible only to the wise. But he really strides naked on parade.  Nobody risks telling him they see nothing until an innocent child blurts out, “The Emperor has no clothes.”

That declaration has come to describe a clear fact that many people insistently get wrong.  It means, “What you think is obviously incorrect. Here is the naked truth.”

Here are some of today’s naked truths.

Vaccination against Covid-19 works.  Maine provides the best possible proof of that truth.

The counties with the lowest new case rates have the highest percentage of vaccinated people. Most people in counties that are now nearly the worst in the country have chosen not to get shots.  They risk their own health and may spread the virus to others.

The term “herd immunity” was meant to convey the idea that, when only a few people remain unvaxed, the virus won’t easily spread.  In the counties with high case rates, we can see the reverse – herd vulnerability.

Many possible explanations exist for abstaining including partisan politics and misinformation, intentional or not.  It may be a matter of mindset.  Maine health expert Dr. Dora Anne Mills has said, “We very strongly need people from conservative circles – religious, faith and business – to really stand up and promote vaccination.”

Here’s another truth that causes harm if ignored. Voting matters.  And serious voting matters seriously.

On this truth, Maine takes comfort because it comes close to leading the country in voter participation.  The U.S. in 2020 had a high rate of two-thirds of eligible voters; Maine had 76 percent participation.  So what’s the problem?

Nationally, one-third of eligible voters did not vote. Joe Biden received 51.3 percent of the vote. That means the president was elected by one-third of the possible number of voters.  While the high turnout may feel good, it’s important to look at those who did not vote. In effect, they “voted” for Biden by not voting for anybody else.

Voting in the 2020 elections influenced decisions on matters such as whose vote will count next time, the future Supreme Court, and Biden’s legislative program.  In Senate races, the GOP margin in North Carolina and the Democratic margin in Arizona were small. If either had flipped, you would never have heard of Sen. Joe Manchin’s swing vote power.

Casual voting on the basis of personality or a wedge issue cannot achieve the full value of each vote.  Who paid attention to the fate of the child tax credit when they voted for senator?  If you care, voting seriously takes thought.

Some politicians have become blind to the truth that “two wrongs don’t make a right.” They justify dubious actions on the grounds that their opponents did the same thing, excusing themselves even while implicitly admitting their actions were wrong. 

This refusal to recognize the truth is a major cause of the spiral to the bottom in American politics, made even worse when the supposed action by the other party is fabricated.  When Trump was impeached for pressuring the Ukraine to help his campaign, his backers excused him by claiming, without any evidence, that Obama had done the same thing.

This ploy may help explain why many eligible voters stay home.  Hearing the claim that both sides have gone wrong, they can conclude there’s no real difference between the parties.  So why bother voting?

Another obvious truth is ignored by government, business and individuals in the computer age.  There’s a widespread belief that voting and personal privacy can be made secure from hacking.  Not so.  Security is growing worse.

The “emperor’s new clothes” answer is that complete computer security is impossible.  Election systems are always in danger and our personal lives are always at risk of public exposure.  Still, computer experts keep trying to get technology to solve its own problems. In the end, though, the “cloud” is just somebody else’s hackable computer. 

The truth may be that we have to go backwards.  Back up everything with vital stuff like election ballots and electric grid operating manuals on paper.  When somebody makes us a “great offer,” it should be on paper so we can read the fine print.

To reduce electronic security issues, from government to individuals, we should apply the old ways of doing things on paper now, even if it takes some work, to prevent problems later.  Otherwise, it could be a case of “sin in haste, repent at leisure.”

Too often, we believe we can see the emperor’s new clothes, while ignoring the naked truth.  Unlike the foolish emperor, we may be harming others as much as ourselves.

Andersen’s amusing Danish kid’s story is a cautionary tale for everybody.

 

Strict Republican loyalty undermines constitutional system

Gordon L. Weil

The drafters of the Constitution in 1787 wisely authorized Congress to control space travel, social media and driverless automobiles.

Of course not. 

The 39 men who created the Constitution could not have imagined the future. While they proposed a new system of government, their invention was a political design, not a detailed operator’s manual. 

They knew they could not foresee the future.  But basic features like federalism, three branches of government, checks and balances and regular elections were essential. How they worked might change, though their evolution should always respect the common values embodied in the Constitution. 

If natural evolution, consistent with those common beliefs, did not keep up with the development of the nation, the Constitution would be formally amended.   While it has happened less often than they thought, the Constitution has been amended 27 times.

The drafters’ assumption about the survival of their common beliefs has been badly disappointed.  Political practices they had envisaged to fulfill the constitutional plan are in tatters. 

The Constitution, even with its amendments, is a short document.  This column is twice as long as the entire article on the judicial system.   The brief document left much room for maneuver to those ready to abandon the underlying beliefs that made it work as the drafters had intended.

Warnings that democracy is in danger are a signal that the common beliefs underlying the Constitution are being replaced by a new set of understandings.  The broad scope of the Constitution allows those who reject the common beliefs underlying it to replace them with a more authoritarian system with less popular control.

There were plenty of gradual changes in the underlying understanding over the years, but the sharp detour occurred after the Republicans won the 1994 congressional elections. Speaker Newt Gingrich imposed strict party discipline similar to the way foreign parliaments operate but not previously used in Congress.

Since then, the GOP has developed strong party loyalty.  A Republican member of Congress is now more likely to toe the party line than to represent their state, district or personal beliefs. Party loyalty has produced added GOP political strength.  That kind of loyalty has extended to state politics.

Voting is an example of the new ways of government.  While the drafters only planned popular control to cover elections for the House of Representatives, the Constitution has been formally amended six times to expand popular control.  However, it has become a cornerstone of GOP policy to try to limit access to voting.

Through their control of state governments, Republicans have drawn congressional districts to reduce the power of some voters, often minorities.  They are now transferring authority from neutral election administrators to partisans who can freely disallow Democratic votes.  They undermine methods, like mail ballots, that have increased voting.

Trying to reduce citizen election participation as a way of holding onto office is clearly against constitutional intent and the essence of democratic government.

Historically, Congress has accepted that elections have results and that presidents should have the right to pick their top staff and federal judges.  Now, the GOP has chosen to undermine presidential choice.  Their refusal to even consider President Obama’s Supreme Court nominee was a glaring case.

GOP Sen. Ted Cruz single-handedly blocks most of President Biden’s key appointments to the State Department.  He won’t relent, he says, until Biden changes his foreign policy in Europe.  Biden has been denied his own team for almost a year.

Cruz’s move is part of a larger trend in which Republicans in Congress seek to control foreign policy, despite the Constitution assigning that power to the president. Of course, Congress can try to cut off funding for presidential actions it opposes, but it was not supposed to micro-manage foreign policy.

On routine matters, partisan war replaces normal mutual accommodation. Democrats and Republicans have boosted the public debt and they have usually jointly agreed to raise the debt limit. This year, the Senate voted to force the Democrats alone to do it, but only 14 Republicans out of 50 would agree to even that.

Biden seeks to respond to public concern about deep political divisiveness. He may harbor an impossible hope if the GOP persists on its path to power by relentlessly blocking the Democrats. The Dems increasingly will seek to do the same.

What is the Republicans’ goal?  It seems to be about gaining power for its own sake more than enacting a specific agenda.  They steadfastly oppose all Democratic proposals, but offer few positive proposals of their own and refuse to compromise.

In writing this column, I regret seeming partisan, because I strongly believe we need a healthy party system.  What worries me is that the system created in 1787 is becoming all about partisan politics at the expense of popular government.  

Abortion case: Much more than women's rights at stake

Gordon L. Weil

Abortion has again arrived at the U.S. Supreme Court.  The issue boils down to whether the Court will abandon its Roe v. Wade ruling that abortion is a federally protected right and leave the issue to the states.

Its decision could place abortion at the center of next year’s political campaigns.

Abortion may be the single most controversial national issue, but there is much more behind the conflict than the question before the Court. Because abortion has been so heavily politicized, its decision will affect both national politics and the Court’s own standing.

The formal question is whether the Constitution protects a woman’s right to have an abortion.  Roe supporters maintain that the natural right of a person to control their own body is protected.  Opponents reject any such right, because they argue that abortion ends the rights of another person, the fetus.

When people assert conflicting rights, they turn to government to determine or reconcile them.  Congress has avoided action.  In effect, the political decision that was too hot for Congress was passed to the Supreme Court, putting it in the middle of the controversy.

In Roe and later decisions, it ruled that federal protection of the abortion right exists in the early stages of pregnancy, but not afterwards.  Abortion opponents, including some state governments, reject those decisions and seek Roe’s reversal, ending all federal protection.

Unable until now to reverse Roe, some states, like Mississippi in the current case, keep trying to narrow the effect of the Court’s rulings. 

Drawing abortion into the center of partisan politics began decades ago. In 1969, President Richard Nixon launched the idea of a “great silent majority.” Ever since, the Republican Party has worked hard to activate that majority by encouraging and exploiting divisive social issues. 

These are “wedge” issues.  The Republicans expect to be repaid for backing dedicated advocates on these issues by gaining their votes.  The single-issue support gives them a blank check for unrelated policies.  For example, if you elect the GOP because of abortion, you give it a free hand on the environment.  

After the 1973 Roe decision, opposition to abortion became a leading wedge issue for the GOP.

The Court’s choice is whether to keep Roe, even with more limits, or declare that its previous decision was a mistake.  If the Court retains Roe in any form, abortion opponents will campaign hard for candidates who will back more supportive appointments to the Court and restrictive legislation. The GOP will inevitably exploit the issue.

If the Court overturns Roe, some believe the result will be a divided country in which some states protect abortions while others outlaw it.  The GOP would relieve some pressure, and an uneasy accommodation would occur.  That’s an illusion.

Anti-abortion advocates will shift their attention to the states, mostly Democratic, which protect the right.  These states will come under heavy pressure, and the GOP could seek to increase its active support there.  In short, the conflict would continue, driven by the GOP effort to gain control of state governments.

Either way, the Supreme Court’s ivory tower image would be tarnished.  Its decision would add to its being seen more as a political agency than as a judicial body.  Under continual pressure, it has arrived at this position by its retreat from Roe.

It could retain respect if it chose to keep a modified Roe on the grounds of following binding precedent.  Sen. Susan Collins reported that Justice Kavanaugh told her that he regarded the case as “settled law,” gaining her support by implying that he would defer to it as a Court precedent. 

Yet precedents are often reversed.  Now Kavanaugh looks ready to overturn Roe.   Either he offered her a hollow assurance or she mistakenly gave “settled law” more weight than it deserved.

The Court has been intentionally loaded with GOP appointees whose coolness to Roe is obvious. Stacking the Court for partisan purposes goes back to John Adams, the second president.  His Federalist justices dominated the Court long after his party had died.

Chief Justice John Roberts is trying to reduce the political effect of a Court decision. He seems ready to shorten the protected period, but keep Roe.  The nature of a good compromise is that both sides end up equally unhappy.  This could qualify as a compromise, but not the last word.

The decision, which will come in an election year, may be an historic turning point. While the issue is abortion, the struggle for political control and respect for the Supreme Court are fundamental concerns. 

Beyond arguing the merits of the abortion case, Democrats need to highlight more aggressively the broader political strategy linked with it. Voters should better understand the full implications of what is at stake in the case.