They say the only thing worse than Election Day punditry is day-after-Election-Day punditry. Actually, they don’t say that, but they should, because it’s true. The moment the election can be called, every commentator is an incisive genius. The pundit-industrial complex is built on smoking-hot takes and spicy tweets about what people should have done but didn’t. Like hindsight, postelection punditry has 20/20 vision.
The next few weeks will be filled with Monday-morning quarterbacking. Was it education that caused Glenn Youngkin to win? Did Republicans “get away with it”? We know one thing, which is that Tuesday’s results might have been bad for Donald Trump: Youngkin kept the autocrat at arm’s length. But despite Youngkin’s instinct that Trump would have cost him voters, Tuesday’s election was not bad for Trumpism. Trumpism can scale if dressed up as, say, Jeb Bush.
But I’m not here to pundit; I’m here to Cassandra. If we are to glean anything from this off-year election it’s that it’s much later than we think. It’s End Times for democracy. It’s time to buttress democracy and codify voting rights. It’s use-it-or-lose-it time, folks.
Elections are fickle, candidates and parties win and lose, but we will be stuck with the Supreme Court justices Trump installed forever, or at least many decades. And they are going to undo everything Democrats do, if Democrats don’t do something to limit the power of those justices.
The day before the 2021 election, this conservative Supreme Court started hearing its first set of S.B. 8 abortion arguments. These arguments focus on the way the Texas abortion law is structured—the intricate procedural issues surrounding the legislative bounty system, which Justice Roberts calls “unusual, if not unprecedented”—and not the actual substance of the law.
As law professor Mary Ziegler writes in The Atlantic, “Two major questions guided the justices’ questioning: whether the federal government can challenge the constitutionality of S.B. 8 and whether Texas can ‘effectively ban’ what is still a constitutional right by outsourcing enforcement to private citizens.”
It’s almost unprecedented for the Supreme Court to bring a case up so quickly (similarly fast-tracked: the Watergate tapes, the Pentagon Papers, and Bush v. Gore). The turtles on the facade of the building notwithstanding, the Supreme Court is working very fast on this aspect of the Texas abortion law.
After Monday, it seems likely that the Court will rein in the reckless citizen enforcement. “If SB 8 is upheld, and the Court permits the use of private bounty hunters to limit constitutional rights, another state could easily use this mechanism not just to restrict abortions and reproductive care, but also to chill other constitutional rights,” Ian Millhiser notes in Vox. After Monday’s oral arguments, it seems like Kavanaugh and Barrett understand what this mechanism could mean for the First Amendment—or conservatives’ beloved Second Amendment. So it’s possible that abortion-litigation vigilantism dies, but it seems that the Court will overturn (or gut) Roe v. Wade in December when it hears Dobbs v. Jackson Women’s Health Organization.
And while Roe hasn’t been officially overturned yet, there’s proof that it’s already been functionally overturned in Texas, where abortions fell by half in the month after S.B. 8 passed. In Texas, women no longer have the constitutional right “to choose to have an abortion without excessive government restriction.” This research from the University of Texas at Austin notes that “44% of women aged 15 to 49 live in a county that does not have [an abortion] facility; these Texans have to drive a median of 51 miles one way to reach the nearest facility.”
It’s important to add that, though it’s not completely clear to me why, the Supreme Court is not immune to bad poll numbers. Barrett, Thomas, Breyer, and Alito all gave speeches complaining about media scrutiny and extolling the virtue of the Court. They don’t need to get reelected, but I guess they still want to be popular. According to Gallup, the Court’s approval rating dropped to 40 percent soon after it allowed the Texas abortion ban to go into effect via a shadow-docket ruling.
There’s also a lot more than just abortion on the docket. As I write this, the Court’s hearing oral arguments on losing gun laws in New York City. Spoiler: They did it. And then there’s climate: A few weeks ago the Court added West Virginia v. Environmental Protection Agency to the docket. Richard J. Lazarus, a law professor at Harvard, told The New York Times, “This is the equivalent of an earthquake around the country for those who care deeply about the climate issue.” Lazarus explains that the goal could be “to sharply cut back, if not eliminate altogether, the new administration’s ability to use the Clean Air Act to significantly limit greenhouse gas emissions from the nation’s power plants.”
The Gorsuch family doesn’t have a great track record with the EPA. When Neil’s mom headed the agency under Ronald Reagan, she cut its budget by almost a quarter, rolling back clean-water regulations and filling the EPA with people from the companies the EPA was supposed to regulate. According to a 1981 Washington Post report, “The cuts are so massive that they could mean a basic retreat on all the environmental programs of the past 10 years, according to agency sources and administration critics. At the same time, divisions between Administrator Anne M. Gorsuch and career agency staff over her approach to policymaking have all but reached open warfare.”
This conservative Supreme Court could stymie almost all the legislation Democrats are working so hard to pass. It is, after all, the last word on everything from elections to government restrictions. So I beg elected Democrats: It’s about the Supreme Court, stupid. Biden’s Supreme Court commission has delayed its final report until December 15—just in time for the legislating desert that is Christmas break. (So far, the panel seems to be split on adding to the Court, but open to term limits, saying: “There are principled reasons favoring term limits for Supreme Court Justices, as they simultaneously would preserve the value of judicial independence and ensure that the Court’s membership is broadly responsive to the outcome of democratic elections over time.”)
Most Court watchers don’t think term limits will be enough, Jay Willis, the editor of Balls and Strikes, told me. “Adding four seats to the Court is the only reform that will fix the immediate, tangible problem with the Court, which is that it is controlled by a 6–3 conservative supermajority that is wildly out of touch with the public. Term limits sound nice, and are a good idea, especially if we were starting from scratch. But we’re not starting from scratch here. Any meaningful Court-reform effort first has to put out the fire before thinking about how to prevent future fires.”
The grim 2021 elections should be a wake-up call. Democrats could easily lose their razor-thin majority in Congress come 2022. Republicans are now running on an anti-democracy message that includes consolidating power and claiming that all elections they lose are rigged. Democrats need to be the grown-ups in the room, codifying voting rights and installing Supreme Court term limits before it’s too late. Democrats could be democracy’s last best hope. Our republic calls desperately for the fortification it needs, but will they answer the call?