Yesterday, the Supreme Court once again upheld Obamacare from the latest frivolous Republican challenge. This time, Amy Coney Barrett and Clarence Thomas, two very conservative justices, signed on with the liberals as well as John Roberts and Brett Kavanaugh to turn back a challenge to the individual mandate by a 7-2 vote. And Twitter (including myself, guilty as charged) was ablaze with discussions of— the previous predictions of liberal court commentators and Democratic politicians that Justice Barrett was a sure vote to kill Obamacare.
It happened that the points made by both sides were right. I was one of the few liberals who comments on the Supreme Court to correctly predict both Barrett’s and Thomas’ vote, so I get to gloat a bit on this, but the fact is, I got into arguments with some very prominent liberals (including none other than Neera Tanden!) during Barrett’s confirmation hearing who were saying that she was going to be the swing vote to kill Obamacare. And on the other hand, liberals are correct to point out that conservatives gloating that they knew Justice Barrett would see exactly how dumb conservative legal argumentation on Obamacare was is not exactly something that casts the right in a good light.
But having said all that (and having written before, ad nauseam, about the problems with hot take, ideological legal commentary), I think it is worth noting WHY liberal commentators got this particular prediction wrong. It happens that it wasn’t a prediction at all; it was really a talking point.
What happened is that when Justice Barrett was up for confirmation, Democrats, of course, wanted to oppose her. As well they should have- she is very conservative and will take the law in directions Democrats do not like. But Democrats decided the big talking point would be health care- Justice Barrett, they said, would take away your health care. They thought this would be a good bread and butter issue that would appeal to voters.
The problem is, in addition to being a false prediction, it was also not the real reason Democrats are so concerned about Justice Barrett. Democrats don’t like her abortion jurisprudence; she is seen as one of the most brilliant young thinkers in the pro-life Catholic legal movement. She has a huge paper trail on this issue. Nobody expects her to do anything other than vote to overturn Roe v. Wade.
And Roe v. Wade polls very well. Even many people who are personally opposed to abortion don’t want to see it overturned. In the great feminist Amanda Marcotte’s words, a lot of people have three exceptions- rape, incest, and me. They have moral qualms about abortion, may be personally conflicted about the number of abortions and the fact that some people don’t do more to prevent pregnancy, but at the end of the day, they don’t want it illegal. It needs to be an option for desperate situations, and abortions should happen as early as possible before the fetus develops. Roe- with its framework separating early and late term abortions- reflects that point of view reasonably well.
Nonetheless, the Democrats decided that they would rather tell a fib about Justice Barrett and health care than tell the truth about what she wants to do to Roe. Why would they do such a thing? My theory is that Democrats are still afraid of being the sex and drugs party.
We’ve had three Democratic Presidents, two of which served two terms, since 1992. Two of them did drugs when they were young men. And yet, marijuana remains a Schedule I drug, and through the first two of those presidencies, the war on drugs continued to be fought in the most aggressive fashion, throwing thousands of young men in federal prison. What happened? Quite simply, Presidents Clinton and Obama know that drug use isn’t nearly the national problem that people claim it is, and further know full well that their own privilege prevented them from spending time in a federal prison for things their Justice Department considered serious crimes, but they were afraid. In the 1960’s and 1970’s, the Democrats were labeled the party of acid, amnesty, and abortion, and they are still afraid of that image.
And it works similarly on sex. We know perfectly well how President Clinton felt personally about non-marital sex; nonetheless, he fired his own Surgeon General for having the audacity to suggest that people masturbate to avoid contracting STD’s.
But the country has changed. Medical marijuana is legal all over the place; recreational marijuana is legal in certain parts of the country as well. One state has even decriminalized possession of harder drugs. And almost everyone thinks pre-marital sex is fine, views porn (and presumably masturbates), and rejects old-time sexual taboos. Yet the Democrats are afraid to talk about abortion.
The fact is that one reason Democrats have lost so many battles on the Supreme Court is because they don’t make it clear both that they support Roe and that the Republican justices are chosen precisely because they are Roe skeptics. Justice Barrett, particularly, has not been subtle about how she felt about abortion, but somehow, Democrats were afraid to say it and thought health care was the better issue. If you never rile the country up against abortion restrictions, is it any wonder we have so many of them.
Democrats need to talk frankly about abortion, and that means they need to talk frankly about sex. People have it, people enjoy it, and having sex shouldn’t be a sentence to mandatory parenthood. Legal abortion provides the backstop for that, even if we hope and encourage people to use contraception. It’s not 1968 anymore, and you don’t have to worry about the American public thinking you are a bunch of libertines. The American public is with you.