WASHINGTON — The Supreme Court is gearing up for a politically explosive year in the spotlight with a series of blockbuster cases that have the power to reshape American life, as well as a Senate battle to confirm a new justice and an election that could be molded by a voter backlash to its rulings.
The 6 to 3 majority of Republican appointees comprises the most conservative court in nearly a century, and its right turn is likely to come into focus in big decisions that could lead to the undoing of abortion rights and an expansion of gun rights. Justices will also consider whether to green-light taxpayer funding for religious education and curtail affirmative action.
It all comes months before a high-stakes midterm election in November, and as public approval of the Supreme Court has sunk to new lows — 40 percent in a recent Gallup poll — despite some efforts by Chief Justice John Roberts to burnish the image of the institution.
Conservatives can already taste victory, and liberals hope to channel the rage at the ballot box.
“There’s great potential for a public backlash if the court’s Republican majority goes for broke in these looming cases,” said Brian Fallon, a former Senate leadership aide who co-founded the progressive judicial group Demand Justice. “The court’s legitimacy is already teetering on the brink and the rulings that the Republican majority may well have in store could push things to a crisis point for confidence in the court.”
“It will be incumbent on Democrats to channel that outrage in a constructive direction,” he said, predicting that smashing Roe v. Wade, and thus allowing states to outlaw abortion, “would so shock the country” that it could be “a needle-moving event.” He said it could galvanize liberals the way Roe and other rulings in that era ignited conservatives.
'There will be outrage'
In the political arena, the future of Roe v. Wade looms largest, with the six conservative justices signaling openness during oral arguments to curtail — if not fully eliminate — the constitutional right to terminate a pregnancy.
“They underestimate how women will react in our country about having their freedom to make their own reproductive health choices taken away,” Sen. Debbie Stabenow, D-Mich., told NBC News. “People have always thought this never really would happen. And if it does happen, and we see the horror stories of circumstances for women, I think there will be outrage.”
Although a large majority of Americans say Roe v. Wade should be upheld, Carrie Severino, the president of the courts-focused conservative group Judicial Crisis Network, cast doubt on the idea of a national backlash if it's overturned. She warned of a “much larger backlash” if the court upholds the crux of the 1973 ruling.
“That would be incredibly damaging for the entire conservative legal movement,” Severino said. “There’s no more incomprehensible decision from an originalist perspective than Roe v. Wade. Endorsing that would be a betrayal to the Constitution.”
The cases come at a time when the justices are preparing for a new arrival with Justice Stephen Breyer announcing plans to retire this summer. Replacing him with another liberal justice, which Democrats are well-positioned to do, would not alter the 6-3 balance of the court. But it is unlikely to be a smooth process in the ever-heating crucible of Senate confirmation fights.
President Joe Biden’s promise to put the first Black woman on the Court drew comparisons to “affirmative action” by Sen. Roger Wicker, R-Miss., who predicted zero Republicans would vote for the nominee. The White House quickly pushed back, noting Wicker’s supportive comments of former President Donald Trump’s vow in 2020 to replace Ruth Bader Ginsburg with a woman.
Sen. Ted Cruz, R-Texas, called it “offensive” for Biden to limit his options to a Black woman.
'Clarify the choice facing voters'
Democrats don’t need any Republican votes to confirm a new justice if their 50 members stick together, and there have been no defections on Biden’s 42 Senate-confirmed judges. But conservatives haven’t given up hope of flipping centrist Sens. Joe Manchin, D-W.Va., or Kyrsten Sinema, D-Ariz., who have broken with their party on major legislative ambitions.
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“When you’re talking about a Supreme Court nominee it’s obviously much higher profile than all these other judges,” Severino said. She said it “remains to be seen” whether Manchin and Sinema will “rubber stamp” Biden’s judicial agenda, which she called “radical.”
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Severino said her group, which has spent heavily to influence past Supreme Court confirmation battles, intends to “be out there” again. “We’ll be holding the Biden administration accountable for the type of person he puts on the court,” she said. “To make sure he’s not given a pass.”
In the election, Democrats are debating how aggressively to focus on the high court, which Republicans have tended to highlight more at the ballot box.
“The Supreme Court has a unique ability to clarify the choice facing voters. Democrats need that contrast to be sharpened because as things stand we’re in for a tough election,” said Tyler Law, a Democratic strategist and former aide to the party’s House campaign arm.
But Law argued that the court’s actions will “enter the conversation organically, particularly on Roe,” and that Democrats must put more focus with paid media and campaign ads on economic issues, like rising costs and inflation.
“The Supreme Court can shake independent, moderate voters awake and make them realize that although they may be frustrated with Democrats, the alternative is unacceptable,” Law said.
Dan Eberhart, a Republican donor, said a nomination fight over Biden's pick is "inevitable," though he suggested that GOP senators may be "wise to take the high road here" rather than wage war.
"Otherwise they risk Democrats making this not about qualifications for the bench, but about equity and other things that could be trickier for Republicans to navigate," he said.
