24 United States The Economist November 6th 2021
TheSupremeCourtLawyers, guns and babies
W
hile republicanswere triumphing
in Virginia, on the other side of the
Potomac Republicanappointed judges
considered cases involving two priotiries
of the conservative legal movement: guns
and abortion. On November 1st, the justic
es heard nearly three hours of argument
involving Texas’s notoriously harsh law
banning abortion at six weeks’ gestation
with no exception for rape or incest. Two
days later another searing controversy
came to their courtroom: the scope of the
constitutional right to keep and bear arms.
With its transformation by Donald
Trump’s three appointees, the court is
primed to bolster gun rights and under
mine the right to abortion.
Two of Mr Trump’s appointees, Brett
Kavanaugh and Amy Coney Barrett, ex
pressed dismay with Senate Bill 8, Texas’s
law that incentivises ordinary citizens to
bring lawsuits by promising $10,000 boun
ties payable by anyone who facilitates an
abortion after six weeks. Their alarm,
along with that of Chief Justice John Rob
erts and even archconservative Justice
Clarence Thomas, stemmed from the Texas
legislature’s ploy insulating the law from
review in federal courts by taking enforce
ment out of state officials’ hands. Lawyers
for Texas insisted that neither abortion
clinics nor the federal government have
anyone to sue, despite the dramatic chilling effect the bounty system has had on
abortion providers—effectively erasing
Roe v Wade—in the Lone Star state.
Early in the first hearing, Justice Barrett
noted that defendants to potential law
suits under SB 8 (anyone who “aids or
abets” an illicit abortion) lack the opportu
nity to offer the “full constitutional de
fence” they are entitled to under Supreme
Court rulings favourable to reproductive
rights from 1992, 2016 and 2020. Even if
such a case were to move all the way
through to the federal Supreme Court, she
added, the law is designed to circumvent
vindication of a longestablished right.
Here Justice Kavanaugh joined the cri
tique. Citing a brief from the Firearms Poli
cy Coalition warning that Texas’s approach
could threaten other constitutional rights,
he asked about states seeking to subvert
speech, freedom of religion or the Second
Amendment. What about a state that
makes “everyone who sells an AR15” sub
ject to a $1m fine through private enforce
ment? Are these gun shop owners out of
luck, too? When Texas’s lawyer said “yes”,
the fate of Texas’s law seemed sealed. Jus
tice Elena Kagan then piled on with a cut
ting response to his repeated comment
that federal lawmakers could make it easi
er to bring cases in federal courts. “Isn’t the
point of a right”, she said, “that you don’t
have to ask Congress?” N EW YORK
The justices hear tricky cases involving rights on opposite trajectoriestionship. As the government spends more
money, people want it to spend less—and
vice versa. And elections are also some
what thermostatic. Once a party takes pow
er, its members tend to become the target
of peoples’ dissatisfactions about whatev
er grievances they have against their gov
ernment, and they get voted out. The na
tionwide swings against Democrats on
Tuesday are further evidence of this trend.
Covid19 and supplychain woes, for in
stance, may not be Mr Biden’s fault, but the
president takes the blame.
Yet this implies Democrats are power
less to combat electoral losses, which they
are not. Though results from elsewhere in
the country seem to offer hints on the sur
face, they do not offer a clear answer to the
party’s dilemmas. Much has been made of
the results of a referendum to replace the
police department in Minneapolis, Minne
sota with a “Department of Public Safety”
that would have been focused less on pun
ishment and traditional lawenforcement
tactics and more on addressing social in
equities and causes of crime. The failure of
such a “woke” pipedream in a liberal city
could be seen as a rebuke of the Democratic
Party’s most leftleaning members and
their toxicity to the brand, were it not for
the results of a vote in Austin, Texas, where
voters rejected a proposition that would
have increased the funding and staffing for
their own cops. More than anything the
mood among America’s voters seemed to
be a reflection of the general unpopularity
of the Democratic Party and its leader.
The thermostat will probably continue
to get colder. Not only have voters tended
to side against presidents in offyear go
vernors’ races, they also tend to punish
them in midterm elections to Congress.
Since 1934, the party controlling the White
House has lost an average of 28 seats in the
House and four seats in the Senate. A ther
mostatic backlash threatens the party’s
control of Congress for at least five years,
and perhaps the next four after that.
Were Mr Biden or Kamala Harris, his
vicepresident, to win the presidential
election in 2024 but lose in 2028 (presi
dents usually win two terms), thermostatic
dynamics would not favour the Democrats
until the first midterm of a Republican
presidency in 2030. But even in the scenar
io Mr Biden or some other Democrat were
to lose in 2024 and Democrats regain con
trol of Congress in 2026, that would still
leave them without legislative power for
two cycles after next year’s midterms. If
the results on November 3rd stem largely
from the typical patterns of American poli
tics, they portend a dark decade ahead for
the Democrats, notwithstanding Mr Bi
den’s plummeting approval ratings. And
this week’s shellackingsuggests that the
party has no sound strategy for how to
combat such trends.n