How Trump’s Supreme Court Helped Save American Democracy from Trump

Posted in: Reproductive Law

Who would have thought that the Supreme Court that Donald Trump refashioned would prompt Americans to reassert the values of democracy?

That is exactly what happened in last week’s midterm elections.

Voters reacted to the radical decisions and undemocratic excesses of the Trump Court by casting their ballots to save the country from the former president and, at least temporarily, from America’s worrisome democratic backsliding.

Elections, like the recently completed midterms, generally serve as referenda on the performance of the party in power. They sometimes even provide a mandate to the winners. Those mandates invest them with political capital and the momentum to turn that capital into policy.

The 2022 election was different. Rather than a referendum on President Biden and the Democratic Party, it turned out to be a referendum on his predecessor and a victory for democracy. It also was a referendum on the Trump Supreme Court.

The result: a decisive rebuke to both the former president and the Court.

Let’s start with former President Trump. Rather than sit on the sidelines, he inserted himself forcefully into the 2022 elections.

Trump endorsed MAGA candidates and campaigned for many of them. He hatched a plan to sow chaos across the country if those candidates didn’t prevail and worked with his loyal followers to continue his effort to undermine democracy.

They reminded voters of what the comedian John Oliver described as the MAGA crowd’s new political ethos: When we win, we have no qualms about the election. When we lose it could only be because the election was rigged. Toward the end of the campaign, word leaked out of his plan to announce another presidential bid.

All told, Trump made sure that his continuing threat to democracy was top of mind when Americans voted.

As Stanford University Professor Didi Kuo put it, “President Trump loomed large over these midterm elections, and in some ways, the midterms were as much about the former president’s influence on Republican candidates as they were about Joe Biden’s first two years in office. The Big Lie, Trump’s false claim that the 2020 election was stolen, became an election issue, particularly in state elections.”

And President Biden reinforced that message.

Biden succeeded in getting voters to think beyond their pocketbooks and focus on the threat Trump poses to democratic governance. In the week before the election, the President gave an impassioned defense of democracy, warning voters that “We can’t take democracy for granted any longer.”

He called out “candidates running for every level of office in America – for governor, for Congress, for attorney general, for secretary of state who won’t commit to accepting the results of the elections they’re in.” He labeled them “un-American.”

Biden blamed Donald Trump for inciting political violence. “American democracy,” Biden said “is under attack because the defeated former president … refuses to accept the will of the people.”

The shocking violence done to House Speaker Nancy Pelosi’s husband drove home Biden’s point.

Still, commentators and news organizations panned the speech for ignoring bread-and-butter issues. Chris Cillizza, of CNN, was typical in his condemnation, calling the speech “head scratching.”

Cillizza was wrong.

Post-election surveys found that while inflation and the economy were leading concerns among voters, 44% of them said that the future of democracy was “their primary consideration” in deciding who to vote for. That’s not a majority, but it’s a significant number, and it made a big difference in election results.

And perhaps the greatest sign of American’s continuing attachment to democracy was the millions of people who voted in the midterm election. Efforts to intimidate them and to erect barriers to voting came up short.

46% of eligible voters cast ballots. While that was down slightly from the 50% who did so in 2018, it was well above the norm for midterm elections. In many states, this year’s turnout set records for midterm contests.

As the Brennan Center noted, “Democracy had a good day on Tuesday. Our election systems faced extraordinary pressure and held up well. The elections were free, fair, and emphatically calm. Elections like this teach lessons and shape narratives. This year the health of our democracy was a central topic for the first time in years – and the public made clear what it thought.”

Part of the reason that democracy had a good day was that the public’s increasing disenchantment with the Court was registered on November 8.

The Court’s Dobbs decision overturning Roe v Wade gave Americans their clearest taste to date of what life under an authoritarian regime might look like. Conservatives celebrated Dobbs for putting a decisive end to the Court’s embrace of autonomy, dignity, and equality as constitutional values. They praised it for unleashing state governments to play an almost theocratic role in controlling women’s bodies.

Large numbers of Americans wanted no part of it. They helped Democrats hold off 2022’s much anticipated red wave.

Post-election surveys found that “about a quarter of voters said the Court’s decision was the single most important factor in their midterm vote. This share increases to more than three in ten among some groups that tend to be pro-choice, including Democratic voters, younger women voters, first time voters, and those who say they are angry about the Court’s decision.”

An NBC poll found that “39% of voters were ‘angry’ as a result of the abortion ruling, while 21% more said they were ‘dissatisfied.’”

The backlash against the Court helped Democratic candidates in all parts of the country. As the polling firm KFF reported, “Voters who said the Supreme Court overturning Roe was the single most important factor in their vote went more than 2:1 for Democratic candidates.”

And in all four of the states where there were ballot initiatives related to state constitutional rights to abortion, the pro-reproductive freedom side won.

Legal scholars are now very familiar with the history of public backlash against progressive Supreme Court decisions and with its political consequences. As an article on noted, “For decades, it was the Republican Party that benefited from conservative anger over the Supreme Court’s original ruling in Roe v. Wade. The June decision appears to have flipped the script….”

The 2022 election gave us the first glimpse of what liberal backlash against a rights’ restricting Court decision looks like and of its political potency. That backlash did not end the threats to democracy posed by Trump and his allies both on and off the Supreme Court. But it signals that they may have overplayed their hand.

If 2022 winds up being a turning point in the battle to preserve American democracy, we can thank Trump’s Supreme Court for that.

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