Well, that didn’t take long.
Shortly after Politico reported Monday night that the Supreme Court would vote to strike down Roe v. Wade when it issues its decision in Dobbs v. Jackson Women’s Health Organization, numerous top Democrats called for the Senate to abolish the filibuster in order to pass legislation that would federally codify Roe v. Wade into law or pack the Supreme Court with justices who would overturn the ruling.
(Here at The Western Journal, we’ve long held Roe v. Wade is a terminally flawed decision that invented a right to abortion out of whole cloth, not any constitutional principle. If the Politico report is accurate, it’s amazing news — and the reaction is more evidence the Democrats view the Supreme Court as legitimate only when it acts as a legislative body. We’ll keep fighting for the right to life and against judicial activism; you can help us by subscribing.)
The draft decision obtained by Politico, which was dated Feb. 10, was written by Justice Samuel Alito and joined by four other justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
In the ruling, Alito called Roe’s reasoning “exceptionally weak” and said the decision “was egregiously wrong from the start.” The justice’s draft opinion similarly repudiated the Supreme Court’s other landmark abortion ruling, 1992’s Planned Parenthood v. Casey — which established the “undue burden” test for abortion laws.
“We hold that Roe and Casey must be overruled,” Alito wrote. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Three liberal justices — Stephen Breyer, Elena Kagan and Sonia Sotomayor — voted to overturn the Mississippi law at the heart of Dobbs v. Jackson Women’s Health Organization.
CNN quoted sources as saying Chief Justice John Roberts wanted to uphold the law, which bans abortions after 15 weeks of pregnancy, but didn’t want to join the other five conservative justices in overturning Roe v. Wade and Planned Parenthood v. Casey.
John Roberts did not want to completely overturn Roe, meaning he would have dissented from Alito’s draft opinion, sources tell @JoanBiskupic. Sources add that Roberts is willing to uphold Miss. law that would ban abortion at 15 weeks of pregnancy https://t.co/zR5YoKNJUp
— Manu Raju (@mkraju) May 3, 2022
Given that leaks of Supreme Court decisions are unprecedented, it’s still not entirely certain whether this will be the final opinion of the court. Nevertheless, the reporting and sourcing seem to solidly indicate the court will vote 6-3 to allow state laws that ban abortion after 15 weeks or more of pregnancy and 5-4 to overturn Roe v. Wade, obviating the constitutional right to an abortion.
The leak appears to have been designed to gin up liberal anger — and, to that extent, mission accomplished. In addition to nearly instantaneous protests outside the Supreme Court itself, congressional Democrats leapt-to, furiously deriding the decision and casting aspersions on the validity of the court itself.
The official joint statement from the two top Capitol Hill Democrats — House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer — stopped short of calling for drastic legislative action but made it clear they no longer considered the Supreme Court a legitimate organ of government.
“The Republican-appointed Justices’ reported votes to overturn Roe v. Wade would go down as an abomination, one of the worst and most damaging decisions in modern history,” they said.
“Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation – all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for half a century,” Pelosi and Schumer said.
“The party of Lincoln and Eisenhower has now completely devolved into the party of Trump. Every Republican Senator who supported Senator McConnell and voted for Trump Justices pretending that this day would never come will now have to explain themselves to the American people.”
The party of Lincoln and Eisenhower has now completely devolved into the party of Trump. pic.twitter.com/rJf2jIz896
— Chuck Schumer (@SenSchumer) May 3, 2022
It’s almost as if the two of the three most powerful Democrats in America wanted to offer definitive proof of the conservative argument that liberals consider the Supreme Court legitimate only when it acts as a body that will enact laws they can’t pass legislatively.
A federal right to abortion would have never succeeded in Congress when Roe v. Wade was decided in 1973. It still wouldn’t — not, of course, if the Democrats were to abide by the rules of the Senate, which requires a 60-vote hurdle to clear the filibuster.
Which, of course, is why plenty of Democrats now want to change the rules.
Last year, the Women’s Health Protection Act passed the House of Representatives on a largely party-line vote. It got shot down in the Senate, however. Now, plenty of Democrats want to see it picked back up — either explicitly or implicitly calling for the filibuster to be nuked:
Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.
— Bernie Sanders (@SenSanders) May 3, 2022
If this report proves true, it means that SCOTUS has stripped women of their rights to equality, autonomy, and reproductive health.
Last year, the House voted to codify Roe v. Wade. The Senate must end the filibuster and pass this legislation immediately. https://t.co/p2xfplJ2eH
— Rep. Nadler (@RepJerryNadler) May 3, 2022
Congress must harness the anger being expressed tonight & take action. There is no question we must pass the Women’s Health Protection Act. It has never been more urgent.
— Richard Blumenthal (@SenBlumenthal) May 3, 2022
It is a fundamental right for a woman to make her own health decisions. We must protect the right to choose and codify Roe v Wade into law.
— Amy Klobuchar (@amyklobuchar) May 3, 2022
If we don’t, what message does that send? We can’t sit around, finger point, & hand wring as people’s futures + equality are on the line.
It’s time to be decisive, lead with confidence, fight for a prosperous future for all and protect the vulnerable.
Leave it all on the field.
— Alexandria Ocasio-Cortez (@AOC) May 3, 2022
Of course, why stop there? If Democrats can eliminate the filibuster to codify Roe v. Wade, they can also do the same thing to pack the Supreme Court with more leftist justices.
At least two prominent Democrats — Sen. Ed Markey of Massachusetts and Rep. Ilhan Omar of Minnesota — were already calling for that.
A stolen, illegitimate, and far-right Supreme Court majority appears set to destroy the right to abortion, an essential right which protects the health, safety, and freedom of millions of Americans. There is no other recourse. We must expand the court.
— Ed Markey (@SenMarkey) May 3, 2022
I am asking every member of the Senate right now, what other judicial outrage must we endure from this illegitimate majority before we act?
— Ed Markey (@SenMarkey) May 3, 2022
Congress must also abolish the filibuster and pass the Women’s Health Protection Act to codify Roe v. Wade into law.
— Ilhan Omar (@IlhanMN) May 3, 2022
While Markey has long been a court-expanding crank and Omar is on the far-left flank of the party, this is suddenly going to become a popular position among rank-and-file Democrats over the coming days, if just because they still can’t swallow the fact they didn’t have the votes to confirm Merrick Garland in 2016 or block Barrett in 2020.
At least the Women’s Health Protection Act seems sane by comparison — if only by comparison alone, considering it would greatly expand on the abortion rights already allowed under Roe and Casey.
However, there’s still one giant problem with that angle — and, as usual, it comes straight out of West Virginia.
When the Democrats brought the WHPA up for a vote in February — a mostly symbolic measure, since it had no chance of clearing the 60-vote threshold — Democrat Sen. Joe Manchin voted against it.
Manchin, of course, is one of two senators who stopped the so-called nuclear option from being invoked to override the filibuster on the Democrats’ voting overhaul legislation earlier this year so that it could be passed along party lines. (The Democrats and Republicans both hold 50 seats in the Senate, but ties are broken by the vice president, giving the Democrats a de facto majority.)
Thus, not only does Manchin oppose nuking the filibuster, but he also opposes codifying Roe v. Wade. (The other Democrat who blocked the nuclear option from being invoked, Sen. Kyrsten Sinema of Arizona, voted for the WHPA.)
While pressure will be applied to Manchin to change his position, this hasn’t worked in the past — and it’s unlikely to work now.
Nevertheless, the fury over the draft decision is ample evidence the Democrats don’t consider the Supreme Court a constitutional arbiter but an arm of the party.
Now that they don’t hold the majority on the court, the system needs to be broken so it can be fixed. To the left, nothing less is acceptable.
This article appeared originally on The Western Journal.