Roe v. Wade and Democratic Failure

What should have happened instead

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In 2013, President Barack Obama met with Ruth Bader Ginsburg, the Supreme Court justice and liberal icon. Staring down a more challenging second term, Obama approached Ginsburg delicately. He mentioned to Ginsburg, then 80 and a two-time cancer patient, that the 2014 midterms were going to be terrible for his party. The Senate, controlled by the Democrats since 2009, was forecasted to flip back to Mitch McConnell’s Republican Party. If this happened, Obama would lose the ability to appoint a young liberal justice who could replace Ginsburg for decades.

Ginsburg didn’t care. She wasn’t going to retire—not for Obama, not for Senator Patrick Leahy, the Vermont Democrat who chaired the Judiciary Committee and also wanted her to consider ending her storied career. Ginsburg enjoyed her work and would keep going. The politics didn’t matter.

For the rest of the decade, the cult of Ruth Bader Ginsburg flourished. Books, t-shirts, action figures, and fawning press—all of it made Ginsburg, once Donald Trump was elected president, perhaps the most famous justice in the world. The Notorious RBG was a transcendent celebrity, like few anywhere. As Trump raged from the White House, she was a symbol of all the liberal resistance to him would be. For millions of Democrats, it was cathartic to cheer on Ginsburg’s defiance. No one would tell a tough woman when to retire.

As promised, she died a Supreme Court justice. In the late summer of 2020, when Trump was still president and Republicans still controlled the Senate, it became readily clear what the price of cult worship had been. Trump and McConnell easily steered through her replacement: Amy Coney Barrett, a religious conservative who had passed, at the lower levels, every right-wing litmus test. There would be no young liberal justice to sit in Ginsburg’s place. At the time of Barrett’s nomination, she was just 48.

The devastating end of Roe v. Wade, which came on Friday, is inevitably bound to Ginsburg’s legacy. The 5-4 decision would have swung the other way had Obama been granted the ability to choose Ginsburg’s replacement in 2013. Only the 6-3 decision upholding Mississippi’s abortion ban after 15 weeks would have survived, though it’s possible four liberal justices could have swayed Chief Justice John Roberts, something of a conservative consensus builder. Furious Democrats will point to McConnell’s decision to roadblock Merrick Garland in 2016, but Obama understood the hard-right Republican leader was not an honest broker. It was the sort of scenario he foresaw in 2013, when he called Ginsburg to lunch. American politics is deeply polarized and zero-sum; McConnell did not care about decorum if he had the votes to thwart a Democratic president.

The other great turning point, of course, was the 2016 election. Yesterday, many Democrats vented their fury at progressives who opposed Hillary Clinton, as well as at the third-party candidacy of Jill Stein. Had Clinton been properly supported, they maintained, she would have beaten Trump. It’s true that Clinton’s victory would have changed the course of history. It’s also true Republicans, in 2017, held a 52-48 majority in the Senate. Would Clinton’s hypothetical victory flipped at least two Senate seats? We will never know. In 2020, it took two long-shot bids from Raphael Warnock and Jon Ossoff in Georgia under very specific circumstances to hand Democrats a 50-50 majority. President Hillary Clinton could have had a 50-50 majority or something much worse. Had McConnell returned to power with his majority under President Clinton—52-48 or 51-49—it’s unclear Clinton would have had the power to appoint any justices.

Another counterfactual hovers around the 2016 Democratic primary. Obama, early on, made it clear he preferred Clinton to his vice president, Joe Biden. Donors flocked to Clinton, locking Biden out of a significant fundraising machine. While Biden would attribute his decision to not run in 2016 to the death of his son Beau, it’s unlikely the deeply ambitious vice president would have stepped aside if he saw a viable path to victory. Obama made the disastrous calculation that the Democratic Party should decide for Clinton rather than permit an open primary of the likes that allowed his own ascension in 2008. Clinton’s consolidation of donor, labor, and elected official support blocked out Biden and Elizabeth Warren, who could have mounted a strong bid that year. Had Warren ran, Bernie Sanders wouldn’t have—the Vermont senator made it clear at the time he was deferring to Warren. It’s possible, even probable, that the 2016 version of Biden wins the Democratic primary with the support of African American voters loyal to Obama and defeats Trump. Biden was more popular and less polarizing than Clinton, who had to contend with her husband’s baggage and a long-running FBI investigation. More than Russian interference, it was the late-breaking Comey letter that probably cost Clinton the election, along with her own missteps, like failing to campaign aggressively in certain states or articulate a compelling vision. Whether Biden would have won with a Democratic Senate is an open question.

None of this, though, matters too much. The damage has been done. Now Democrat-run states must rush to protect abortion rights, which they are doing, and Democratic governors with Republican legislatures—Michigan, Pennsylvania, and Wisconsin—need to figure out how to codify a right to an abortion over the objections of conservative lawmakers in gerrymandered districts. This is the world a reactionary Supreme Court has handed us. It didn’t have to be this way.