Democrats are bracing for the court’s 6-3 conservative majority to deliver potentially blockbuster defeats but are already preparing to try to turn the losses into victories at the ballot box. Democrats are betting on polling trends that show that Americans support Roe v. Wade and tougher gun laws, especially in the vital and fluid suburbs.
Rep. Sean Patrick Maloney of New York, the campaign chair tasked with defending Democrats’ House majority, said Republicans “may live to regret it” if the Supreme Court majority they built reverses Roe.
“Anybody who understands how important reproductive freedom is would be outraged by overturning 50 years of settled law. It would be terrible for the country. And I think there would be a price to pay,” Maloney said. “People who contribute to that should be held accountable.”
Historical trends favor Republicans in the battle for the House and the Senate next year. The last two presidents suffered heavy losses for their parties in the first midterm elections. Democrats, who rely on a base of younger and nonwhite voters, tend to have sharper drop-offs in turnout when they control the White House.
“Turnout, turnout, turnout!” said Tyler Law, who was an aide to the House Democrats’ campaign arm in 2018.
“If you look back at past midterms where Democrats took an a-- whooping, it was largely because of huge drops in Democratic turnout,” he said. “Two massive decisions from the Supreme Court will up the stakes of the election and fight against any voter apathy that could hurt our side.”
For decades, abortion has been a political win-win for Republicans, galvanizing their base while lulling supporters of legal abortion into relative complacency because of a perceived unlikelihood of losing the right. Guns were once a winning issue for the GOP, but the rising frequency of mass shootings over the last decade has moved voters in favor of stricter laws, surveys show.
Mike Davis, a conservative strategist who has worked on Supreme Court nominations at the highest levels of the GOP, said he’d welcome a battle over the courts in the midterm election.
“As Hillary Clinton in 2016 and four former Senate Democrats in 2018 learned the hard way, focusing on the Supreme Court is a winning issue for Republicans,” Davis said, adding that it “unites and motivates conservatives” and “wins over independents.”
'A problem for Republicans'
In 2018, a heated fight over Supreme Court nominee Brett Kavanaugh fired up conservatives who believed he was mistreated over decades-old allegations of sexual misconduct. Last year, one week before the election, Republicans confirmed Amy Coney Barrett to replace the late liberal icon Ruth Bader Ginsburg, enabling conservative legal victories that once appeared unlikely.
"The American people are pro-choice and understand how important reproductive freedom is," said Rep. Katherine Clark, D-Mass., the second-highest-ranking woman in House leadership. "The American people want to reduce gun violence and make a difference. And so we will see what happens with the Supreme Court. But I think if they were to rule against the will of the American people on those two fundamental issues, that is going to be a problem for Republicans in the fall of 2022."
One case is about the constitutionality of a Mississippi law that would ban most abortions after 15 weeks of pregnancy, going to the heart of Roe v. Wade and its subsequent precedents. In the gun case, the court will decide whether the Second Amendment provides a right to carry a handgun outside the home. The justices will hear both this fall, with decisions expected by the end of June 2022.
President Joe Biden faces a restive progressive flank that is pushing to add four seats to the Supreme Court in response to scorched-earth Republican tactics to cement a conservative majority. In response, he has created a commission with a broad ideological range of voices to study the structure of the court and recommend changes.
A Republican Senate campaign aide predicted that the rulings on guns and abortion would elevate the voices on the left calling to expand the Supreme Court, saying it would enable Republican candidates to run against "court packing," which is unpopular.
Other conservatives downplay the political impact of the cases, suggesting that the outcomes are uncertain and that the justices may take incremental steps with consequences unlikely to be felt broadly or quickly by voters.
“It’s difficult to look into the future and predict how the court might rule on either issue, let alone what the political reaction would be,” said Dan Eberhart, an oil and gas executive who is a major Republican donor. “I have a hard time believing the court will go so far as overturning Roe v. Wade, and even if they do, that doesn’t mean abortions would become illegal overnight.
“Both sides are sure to use these issues to mobilize their base and increase turnout,” he said. “Expect lots of loud, obnoxious, half-truthful campaign ads and fundraising appeals.”