It’s been over two years since the Supreme Court ruled in the Dobbs v. Jackson Women’s Health Organization. The Dobbs decision overturned Roe v. Wade (1973) and Parenthood of Southeastern Pa. v. Casey (1992).
In this case, five justices overturned Roe and Casey.
Chief Justice John Roberts wrote a concurring opinion where he joined in the judgment that all pre-viability prohibitions of abortion are not unconstitutional; however, he did not join the majority opinion to overturn Roe and Casey. Chief Justice Roberts wrote:
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
I agree that it is a “serious jolt to the legal system.” I have written previously that I believe this decision nearly cost the Republicans their House majority in the 2022 midterm elections.
President Donald Trump appointed three justices to the Supreme Court and all three of them voted to overturn Roe and Casey.
If President Trump appointed three of the five justices who overturned Roe and Casey, should he receive 60% of the credit? No, I think President Trump only deserves 50% of the credit.
Of the five justices who voted to overturn Roe and Casey, three of them would not have been in on the Supreme Court if the Democrats had not made a series of political errors.
Amy Coney Barrett
In July 2013, President Barack Obama had lunch with Justice Ruth Bader Ginsburg. At this meeting, President Obama stressed the possibility that the Democrats could lose the U.S. Senate in the 2014 midterm elections.
Justice Ginsburg refused to take the hint and retire. When she died in 2020, President Trump was able to appoint Amy Coney Barrett to replace her.
If President Obama had been able to appoint a replacement in 2013, a liberal appointee would have replaced Ginsburg. After President Trump was elected to office, it was too late for Justice Ginsburg to retire.
Clarence Thomas
While Justice Ginsburg was too late, Justice Thurgood Marshall retired too early. After the 1991 Persian Gulf War, President George Bush’s job approval rating reached 89% in March 1991.
Justice Marshall had been on the court for 24 years and he clearly didn’t want to wait another four years to retire. Justice Marshall died on January 24, 1993.
This was only four days after President Clinton was inaugurated. If he waited a little longer, President Clinton could have appointed another liberal justice to the court.
Neil Gorsuch
When Justice Antonin Scalia died in February 2016, the Republicans fought to keep this seat open until the 2016 election elected President Trump. If they failed, it would have shifted the balance of power on the Supreme Court.
The Democrats in 2016, lost in large part because
Hillary Clinton was not seen as being careful, when it came to the handling of emails. And her famous “Basket of Deplorables,” didn’t help hers, or the Democrats' cause, that year either.
Brett Kavanaugh
Brett Kavanaugh stressed the importance of precedent on abortion cases in his confirmation hearings.
Justice Kavanuagh said, “It is not as if it is just a run of the mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.”
I have always wondered what would have happened in the Dobbs case if Democrats didn’t try to destroy Kavanaugh’s character in his confirmation hearings.
President Barack Obama’s Biggest Mistake
Perhaps the gravest mistake by the Democrats was that President Obama refused to codify Roe when he had the chance in the first two years of his administration.
Darragh Roche wrote a fantastic article for Newsweek in 2022 where she quoted many Democrats and liberals who were angry at President Obama for refusing to codify Roe.
Roche wrote, “For a brief period during the 111th Congress, Democrats had a filibuster-proof 60 seat majority in the Senate when independents who caucus with the Democrats are taken into account but the Freedom of Choice Act never became law.”
If liberals are so committed to abortion rights, why didn’t the Democrats pass the Freedom of Choice Act when they had the chance?
In the 2024 election, the Democrats should remember that their elected leaders could have saved Roe and Casey. In his play Julius Caesar (Act 1, Scene 2) William Shakespeare wrote:
“The fault, dear Brutus, is not in our stars,
But in ourselves, that we are underlings.”
Robert Zapesochny is a researcher and writer whose work focuses on foreign affairs, national security and presidential history. He has been published in numerous outlets, including The American Spectator, the Washington Times, and The American Conservative. When he's not writing, Robert works for a medical research company in New York. Read Robert Zapesochny's Reports — More Here.
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