Supreme Court (US)

Subterms

    More stories

    • 138 Shares99 Views

      in Elections

      The Supreme Court Is Just Doing What the Supreme Court Does

      by

      Under a traditionally liberal view of the Supreme Court, its decision on Monday to uphold, at least for this year, a Congressional map in Alabama that intentionally weakens the voting strength of Black people in the state is a betrayal of its duty to protect the rights of minorities, racial and otherwise.Under a more historical view, it is the court doing what the court does.First, a little background on Monday’s decision. Section 2 of the Voting Rights Act bars any voting law or procedure that “results in a denial or abridgment of the right of any citizen to vote on account of race,” as the Department of Justice puts it. This includes situations where lawmakers have “cracked” minority communities into multiple districts in order to dilute the strength of their voters. To remedy this, courts can require states to create “majority-minority” districts in which these voters can then elect the candidates of their choice. This is especially important in places where voting is so polarized by race that minority communities are rarely, if ever, able to shape the outcome of an election.Last year, Alabama’s Republican-controlled Legislature drew and passed a Congressional map that packed a large number of Black voters into a single district encompassing the cities of Birmingham and Montgomery, while spreading the remaining voters throughout six majority white districts. By “packing” one group of Black voters and dispersing the rest, Alabama Republicans successfully reduced the voting strength of the entire Black community in the state, which accounts for 27 percent of its population.Black Alabamians filed suit. In January, after seeing evidence and hearing arguments from both sides, a three-judge district court panel (with two Trump appointees) agreed that the state had violated the Voting Rights Act. It ordered the Legislature to draw a new map containing a second majority-minority district. Republicans appealed the decision to the Supreme Court, where five members voted to stay the order, reinstating the original map.This, wrote Justice Brett Kavanaugh, who voted with the majority, was not done “on the merits.” It was merely an attempt to keep the courts from disrupting the upcoming election which, he said, was “close at hand.” Except Alabama’s primary is not until May and its general election is not until November. There was, and there still is, plenty of time to draw new maps.In the view of Chief Justice John Roberts, who voted with the minority despite his hostility to the Voting Rights Act, “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” By granting a stay, the conservative majority has effectively changed the law, freeing Alabama (and other states) to devise the kinds of racial gerrymanders that the Voting Rights Act was in part written to prohibit. That is one reason my colleague Linda Greenhouse called the decision a “raw power play by a runaway majority that seems to recognize no stopping point.”But again, historically speaking, we should not see this as an exception to the rule, but as the rule.On July 9, 1868, the United States ratified the 14th Amendment to the Constitution. As the historian Eric Foner explains in “The Second Founding: How the Civil War and Reconstruction Remade the Constitution,” the amendment was written, among other things, to “establish general principles about the rights of the freed people and of all Americans.” Within a decade, however, the Court had radically narrowed the scope of that amendment, construing it as “a vehicle for protecting corporate rights rather than those of the former slaves.”On Feb. 3, 1870, the United States ratified the 15th Amendment to the Constitution. It prohibited the national government and states from denying the right to vote on account of “race, color, or previous condition of servitude” and gave Congress the power to enforce that prohibition with “appropriate legislation.” It was written, specifically, to extend suffrage to Black men. But in 1876, Foner notes, the Supreme Court “overturned the convictions of Kentucky officials who had conspired to prevent blacks from voting in a local election.”Writing for an 8-1 majority of the court, Chief Justice Morrison Waite conceded that the amendment grants “an exemption from discrimination in the exercise of the elective franchise on account of race,” but denied that it conferred the “right of suffrage” on anyone. His opinion opened the door to the kinds of restrictions — poll taxes, literacy tests and grandfather clauses — that Southern states would eventually use to disenfranchise their Black populations.In the 1870s, Congress passed laws to punish acts of violence meant to deprive Americans of their constitutional rights, to outlaw discrimination in public accommodations and to prohibit exclusion from jury service. In the 1880s, the Supreme Court either invalidated those laws or rendered them a dead letter. In his 1883 opinion for the majority in the Civil Rights Cases, which held that neither the 13th nor the 14th Amendments gave Congress the power to outlaw racial discrimination by private individuals, Justice Joseph P. Bradley declared that, “When a man has emerged from slavery” there must be “some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.”It is Congress, and not the Supreme Court, that has, over time, done more to defend the civil and voting rights of all Americans. To do the same, the court has had to reverse its own work. As Nikolas Bowie, an assistant professor of law at Harvard, has written, “As a matter of historical practice, the Court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status.”Barring the unexpected, and assuming the presidency continues to swing evenly between the two parties, conservatives can expect to hold the Supreme Court for at least a generation. But this won’t be a new frontier as much as a return to form.For most of its history, the Supreme Court — the 16 years of the Warren court notwithstanding — has been a friend to hierarchy and reaction. Thus, for Americans who want a more equal society, the Supreme Court has been, is and will continue to be an adversary, not an ally. Understanding that fact is the first step toward doing something about it.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 100 Shares149 Views

      in Elections

      The Supreme Court Fails Black Voters in Alabama

      by

      You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.This is the same John Roberts who in 1982, as a young lawyer in the administration of President Ronald Reagan, fought a crucial amendment to the Voting Rights Act of 1965; whose majority opinion in 2013 gutted one-half of the Voting Rights Act and who joined an ahistoric opinion last summer that took aim at the other half; and who famously complained in dissent from a 2006 decision in favor of Latino voters in South Texas that “it is a sordid business, this divvying us up by race.”Yes, that Chief Justice Roberts. What the 5-to-4 majority did was that far out of line.The unsigned order that drew the chief justice’s dissent Monday night blocked the decision by a special three-judge Federal District Court ordering the Alabama Legislature to draw a second congressional district in which Black residents constitute a majority. Alabama’s population is 27 percent Black. The state has seven congressional districts. The lower court held that by packing some Black voters into one district and spreading others out over three other districts, the state diluted the Black vote in violation of the Voting Rights Act.The Supreme Court will hear Alabama’s appeal of the district court order in its next term, so the stay it granted will mean that the 2022 elections will take place with district lines that the lower court unanimously, with two of the three judges appointed by President Donald Trump, found to be illegal.Chief Justice Roberts objected that the ordinary standards under which the Supreme Court grants a stay of a lower court opinion had not been met. “The district court properly applied existing law in an extensive opinion with no apparent errors for our correction,” he wrote. Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, also dissented in a more extensive opinion that accused the majority of using the court’s emergency “shadow docket” not only to intervene improperly on behalf of the state but also to change voting rights law in the process.This is no mere squabble over procedure. What happened Monday night was a raw power play by a runaway majority that seems to recognize no stopping point. It bears emphasizing that the majority’s agenda of cutting back on the scope of the Voting Rights Act is Chief Justice Roberts’s agenda too. He made that abundantly clear in the past and suggested it in a kind of code on Monday with his bland observation that the court’s Voting Rights Act precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.” But in his view, that was an argument to be conducted in the next Supreme Court term while permitting the district court’s decision to take effect now.While the majority as a whole said nothing, Justice Brett Kavanaugh took it upon himself to offer a kind of defense. Only Justice Samuel Alito joined him. Perhaps the others — Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett — chose not to sign onto his rude reference to Justice Kagan’s “catchy but worn-out rhetoric about the ‘shadow docket.’ ” Or perhaps his “To reiterate: The court’s stay order is not a decision on the merits” rang a little hollow when, as Justice Kagan pointed out, “the district court here did everything right under the law existing today” and “staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.”In other words, when it comes to the 2022 elections, for Black voters in Alabama the Supreme Court’s procedural intervention is the equivalent of a ruling on the merits.Or maybe the others couldn’t indulge in the hypocrisy of Justice Kavanaugh’s description of the standards for granting a stay. The party asking for a stay, he wrote, “ordinarily must show (i) a reasonable probability that this court would eventually grant review and a fair prospect that the court would reverse, and (ii) that the applicant would likely suffer irreparable harm absent the stay.”But wait a minute. Weren’t those conditions clearly met back in September when abortion providers in Texas came to the court seeking a stay of the Texas vigilante law, S.B. 8, which was about to go into effect? That law, outlawing abortion after six weeks of pregnancy and authorizing anyone anywhere in the country to sue a Texas abortion provider for damages, was flagrantly unconstitutional, and the law was about to destroy the state’s abortion infrastructure. But did Justice Kavanaugh or any of the others in Monday’s majority vote to grant the requested stay? They did not. Chief Justice Roberts did.It’s impossible not to conclude that what we see at work is not some neutral principle guiding the Supreme Court’s intervention but simply whether a majority likes or doesn’t like what a lower court has done. In his opinion, Justice Kavanaugh sought to avoid that conclusion by arguing that when it comes to election cases, the Supreme Court will more readily grant a stay to counteract “late judicial tinkering with election laws.” But there was no late “tinkering” here. The legislature approved the disputed plan in November, after six days of consideration, and the governor signed it. The district court conducted a seven-day trial in early January and on Jan. 24 issued its 225-page opinion. The election is months away — plenty of time for the legislature to comply with the decision.Disturbing as this development is, it is even more alarming in context. Last July, in a case from Arizona, the court took a very narrow view of the Voting Rights Act as a weapon against vote denial measures, policies that have a discriminatory effect on nonwhite voters’ access to the polls. That case, Brnovich v. Democratic National Committee, was brought under the act’s Section 2, which prohibits voting procedures that give members of racial minorities “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Justice Alito’s opinion for a 6-to-3 majority set a high bar for showing that any disputed measure is more than just an ordinary burden that comes with turning out to vote.It was an unusual case, in that Section 2 has much more typically been used as it was in Alabama, to challenge district lines as causing vote dilution. Obviously, at the heart of any Section 2 case is the question of how to evaluate the role of race. In its request for a stay, Alabama characterized the district court of having improperly “prioritized” race, as opposed to other districting factors, in ordering a second majority Black district. In response, the American Civil Liberties Union and the NAACP Legal Defense & Educational Fund, representing the Alabama plaintiffs, called this a mischaracterization of what the district court had actually done when it took account of the compactness and cohesion of the Black community and the history of white Alabama voters refusing to support Black candidates.Stripped to its core, Alabama is essentially arguing that a law enacted to protect the interests of Black citizens bars courts from considering race in evaluating a redistricting plan. Justice Kagan’s dissenting opinion contained a warning that granting the stay amounted to a tacit acceptance of that startling proposition. She said the stay reflected “a hastily made and wholly unexplained prejudgment” that the court was “ready to change the law.”The battle over what Section 2 means has been building for years, largely under the radar, and now it is front and center. The current Supreme Court term is all about abortion and guns. The next one will be all about race. Along with the Alabama case, Merrill v. Milligan, the Harvard and University of North Carolina admissions cases are also on the docket — to be heard by a Supreme Court that, presumably, for the first time in history, will have two Black justices, and all in the shadow of the midterm elections. The fire next time.Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008. She is the author of “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 125 Shares149 Views

      in Elections

      Clyburn Pushes Childs for Supreme Court, Testing Sway With Biden

      by

      The highest-ranking Black member of Congress is credited with helping resurrect the president’s 2020 campaign at a critical point. Now he is calling in a favor.WASHINGTON — Representative James E. Clyburn of South Carolina was already picturing Judge J. Michelle Childs sitting on the Supreme Court bench in early 2020 when he suggested Joseph R. Biden Jr. could revive his faltering presidential campaign by pledging to nominate the first Black woman to serve there.Mr. Biden did so, paving the way for an endorsement from Mr. Clyburn ahead of the South Carolina primary that was a critical turning point in the race. In the months since the election, Mr. Clyburn, the No. 3 House Democrat and the highest-ranking Black member of Congress, has not been shy about taking his share of credit for Mr. Biden’s victory and trying to exert influence on the president’s policy and personnel choices.Now, Mr. Clyburn is mounting an aggressive campaign to persuade Mr. Biden to nominate Judge Childs, a district court judge in his home state of South Carolina, to succeed Justice Stephen G. Breyer, who is retiring. It is a blatant effort to call in a political favor in the form of a lifetime appointment to the nation’s highest court and, perhaps, the most consequential test yet of the Biden-Clyburn relationship.“I make my case, I share my views, sometimes my feelings, and then I go on,” Mr. Clyburn, 81, said in a recent interview, describing how he uses his sway with Mr. Biden. This time, he is going all out, and irking some of the president’s allies in the process.Within hours of Mr. Breyer’s retirement announcement, Mr. Clyburn held a conference call with South Carolina reporters, stating that Judge Childs’s humble background — she attended large public universities on scholarships, earning her undergraduate degree at the University of South Florida and law and business degrees at the University of South Carolina — would better represent the country than another justice with an Ivy League pedigree. (Ketanji Brown Jackson, another top contender, has two degrees from Harvard, while a third, Leondra R. Kruger, has one from Harvard and one from Yale.)Allies in South Carolina immediately began emailing talking points to potentially helpful surrogates, noting that Judge Childs was “rooted in the African American community,” a member of Delta Sigma Theta, the prestigious Black sorority, and a member of the oldest Black Catholic church in Columbia.Over the past week, Mr. Clyburn has plugged her case on television and noted that she had the backing of Senator Lindsey Graham, Republican of South Carolina. On Wednesday, he and Mr. Graham had breakfast in the Senate dining room with Senator Tim Scott, Republican of South Carolina, to discuss, among other issues, Judge Childs and how to make a bipartisan case for her nomination. Mr. Graham posted a picture on Twitter of the three men smiling.“It’s good for the country to have the court look more like America,” Mr. Graham said afterward. He said he had told the White House that Judge Childs, who is regarded as more moderate than other candidates Mr. Biden is thought to be considering, “would draw some Republican support.”At the White House, Mr. Clyburn has been talking her up to the president since a few days after Inauguration Day, although he said he had not spoken to Mr. Biden about Judge Childs since Mr. Breyer’s retirement announcement. It was Mr. Clyburn who urged the president to nominate her to the U.S. Court of Appeals for the District of Columbia Circuit, which is considered a feeder to the Supreme Court. Mr. Biden announced in December that he would do so.“He’s just determined,” said Representative G.K. Butterfield, Democrat of North Carolina, said of Mr. Clyburn. “He wants a pick who is racially and geographically diverse, whose views reflect the mainstream of the American people.”The result has been the kind of pressure campaign that longtime Biden aides say can sometimes backfire. Mr. Biden recoils at being lobbied through the television. And there is sensitivity among some of his allies and former aides that his selection must look like the president’s own historic pick, not like a political chit he owes to Mr. Clyburn.Mr. Clyburn, left, received his diploma from Mr. Biden at the South Carolina State University’s commencement ceremony in December.Tom Brenner for The New York TimesBut for Mr. Biden, a believer in sticking with the people who helped him get to where he is, Mr. Clyburn, a friend of many decades, still enjoys a special status.“I’d almost walk to South Carolina to be able to do that for Jim,” Mr. Biden said when he visited South Carolina in December to give the commencement speech at his alma mater, South Carolina State University. Mr. Clyburn, who received his diploma by mail when he graduated in 1961, walked with the graduates and received his diploma from Mr. Biden.“When it comes to the Black community in general, Jim Clyburn is on that short list of people he will always call,” Donna Brazile, a Democratic strategist, said.Mr. Clyburn is an old-school Southern politician perhaps better known for his annual fish fry, which draws most of the Democratic presidential candidates every four years, than he is for his role as House whip. He is a natural political operator who cultivates press coverage, values loyalty and understands how to press an advantage when he can.Over the decades when they overlapped in Congress, Mr. Biden and Mr. Clyburn often played golf and appeared together on Charlie Rose’s talk show. They first bonded over the fact that one of the cases in Brown v. Board of Education, the landmark Supreme Court ruling that held that segregating schools was unconstitutional, was from South Carolina and another was from Mr. Biden’s home state of Delaware.“We spent time talking about the similarities of these cases,” Mr. Clyburn recalled of their early conversations.When Mr. Biden drew criticism during the 2020 campaign for boasting of his work with segregationist Democrats in the 1970s, Mr. Clyburn was there to defend him.Representative Bennie Thompson, Democrat of Mississippi, said that Mr. Clyburn’s advocacy must be looked at in light of how he “basically resurrected” Mr. Biden’s presidential campaign.“I think Joe Biden has to listen to him,” he said.The White House has downplayed the influence of any single voice in the selection of a nominee, but has confirmed that Judge Childs is being considered.“The president’s focus is not on gaming out the process; it’s on picking the right candidate,” Jen Psaki, the White House press secretary, said at a briefing this week when asked about Mr. Clyburn and Mr. Graham’s coordinated campaign.Mr. Clyburn said he was aware that the administration would not always heed his advice. But that has not deterred him from pushing.He lobbied successfully for his longtime friend Marcia L. Fudge to join the president’s cabinet, for Shalanda Young to be chosen as director of the Office of Management and Budget and for Jaime Harrison, a former South Carolina representative, to become chairman of the Democratic National Committee.He has also tried to expand his role as a kingmaker, inserting himself into a party primary in Ohio to boost a more moderate candidate over a progressive acolyte of Senator Bernie Sanders. His chosen candidate won, but his involvement angered some on the left, underscoring the ideological divide among Democrats between establishment veterans in Congress and a progressive new generation that is increasingly challenging them.Judge Childs’s potential nomination has also drawn pushback from some progressives and labor activists, who have flagged her work as a lawyer representing employers opposing unionization drives.In terms of policy, he and his congressional allies credit Mr. Clyburn with pushing for the “10-20-30 formula,” which directs investments to poverty-stricken communities, to be included in the president’s budget request. They also give him credit for pressing for more money for broadband in the infrastructure law.Mr. Clyburn, never a shrinking violet, goes further.“It was yours truly who made broadband an infrastructure issue,” he said. “The White House has supported me with all these issues.”Judge Childs with Mr. Clyburn, who has said her background would better represent the country than another justice with an Ivy League pedigree.Chip Somodevilla/Getty ImageMr. Clyburn also takes credit for Mr. Biden’s pledge to nominate a Black woman to the Supreme Court, though others say he played only a partial role.“I decided that Joe Biden needed to do something that would demonstrate a high level of respect for Black women,” he said. “What higher level of respect can there be?”Biden campaign aides recall things slightly differently. It was Ms. Fudge, they said, who first raised the issue of making the pledge to nominate a Black woman to the Supreme Court during a meeting Mr. Biden held with members of the Congressional Black Caucus aboard the U.S.S. Yorktown in Charleston, S.C.During the meeting, the group, which included Mr. Clyburn, had a frank conversation with Mr. Biden about the state of his campaign.“We said, ‘If you really want to be the nominee, you’re going to have to do something dramatic,’” Mr. Thompson recalled. “If you don’t win the debate, and ultimately the Saturday primary, it’s over.”Ms. Fudge then told Mr. Biden he needed to find a forum where he would pledge to put a Black woman on the Supreme Court. Mr. Clyburn and Mr. Thompson agreed.“We left there with the impression that he was going to do it,” Mr. Thompson said.Some of Mr. Biden’s advisers, however, thought making such a pledge on the debate stage would be viewed as pandering to Black voters. In a debate preparation session, Symone D. Sanders, a former top aide who is Black, said she did not think it was a good idea.But Mr. Biden ultimately made the pledge, and Mr. Clyburn’s endorsement soon followed.The White House has not always accommodated his requests. He originally pushed for Ms. Fudge to be nominated as agriculture secretary, but she ended up as the secretary of Housing and Urban Development.Mr. Clyburn remains optimistic that Mr. Biden will choose Judge Childs and that he will have had a hand in the selection of a groundbreaking Supreme Court nominee.But even if Judge Childs does not get the nod, Mr. Clyburn’s allies said he had already made his mark on the process.“At 81, as his career nears an end, his legacy is for the most part written, but you can always add accouterments,” said Bakari Sellers, a Democratic strategist and former member of the South Carolina legislature. “You can’t mention the first Black female on the Supreme Court without mentioning the name Jim Clyburn.” More

    • 88 Shares189 Views

      in Elections

      Alabama Redistricting Decision Reasserts Voting Rights Act

      by

      Three federal judges in Alabama ruled that a new congressional map drawn by G.O.P. state lawmakers violated the Voting Rights Act.After years of court decisions battering the Voting Rights Act, a ruling in an Alabama redistricting case is reasserting the power of the 56-year-old law — and giving Democrats and civil rights groups hope for beating back gerrymandered maps.The decision from three federal judges ordered state lawmakers to rework their newly drawn congressional maps. The Republican-led legislature violated the Voting Rights Act, the judges ruled, by failing to draw more than one congressional district where Black voters might elect a representative of their choice.Alabama’s Republican attorney general, Steve Marshall, quickly appealed the decision to the U.S. Court of Appeals for the 11th Circuit on Tuesday, and asked for a motion to stay the ruling.Still, the unanimous ruling — signed by two judges appointed by former President Donald J. Trump and one by former President Bill Clinton — was a sign that a key weapon against racial discrimination in redistricting could still be potent, even as other elements of the landmark Voting Rights Act have been hollowed out by Supreme Court decisions. The case hinged on Section 2 of the act, which bars racial discrimination in election procedures.A similar case already is pending in Texas, and the success of the challenge in Alabama could open the door to lawsuits in other states such as South Carolina, Louisiana or Georgia. It could also serve as a warning for states such as Florida that have yet to finish drawing their maps.“The Supreme Court has cut back on the tools that we in the voting rights community have to use to deal with misconduct by government authorities and bodies,” said Eric Holder, a former U.S. Attorney General who is now the chairman of the National Democratic Redistricting Committee. “Section 2 to now has remained pretty much intact.”The court’s ruling in Alabama — where the Black residents make up 27 percent of population yet Black voters are a majority in just one of seven House districts — comes amid a polarized redistricting cycle, in which both Republicans and Democrats have sought to entrench their political power through district lines for congressional and legislative maps. In much of the country, that has created districts that bisect neighborhoods or curl around counties to wring the best possible advantage.Civil rights leaders and some Democrats argue that process too often comes at the expense of growing minority communities. Black and Hispanic voters have a history of being “packed” into single congressional districts or divided up across several so as to dilute their votes.In 2013, the Supreme Court dealt the Voting Rights Act a significant blow in Shelby v. Holder, hollowing out a core provision in Section 5. The “preclearance” provision required that states with a history of discrimination at the polls get approval from the Justice Department before making changes to voting procedures or redrawing maps. Last year, the court ruled that Section 2 would not protect against most new voting restrictions passed since the 2020 election.Mr. Marshall, the Alabama attorney general, argued the only way to create two majority-Black congressional districts is to make race the primary factor in map-drawing and called the court’s ruling “an unconstitutional application of the Voting Rights Act.”“The order will require race to be used at all times, in all places, and for all districts,” Mr. Marshall wrote in his appeal Tuesday. “Based on the political geography of Alabama and the broad dispersion of Black Alabamians, it is essentially impossible to draw a map like those presented by plaintiffs unless traditional districting principles give way to race.”The case is very likely to advance to the Supreme Court, where Justice Clarence Thomas has already indicated he does not believe that Section 2 of the Voting Rights Act prevents racial gerrymandering, a question the court did not address when it struck down other elements of the law.The Alabama decision is the second this month in which a court has invalidated a Republican-drawn congressional map. The Ohio Supreme Court ruled state legislative and congressional maps drawn by Republicans violated a state constitutional prohibition on partisan gerrymandering. The North Carolina Supreme Court delayed the state’s primaries while a challenge to Republican-drawn maps there is heard.How U.S. Redistricting WorksCard 1 of 8What is redistricting? More

    • 163 Shares169 Views

      in Elections

      Republicans Think There Is a ‘Takeover’ Happening. They Have Some Reading to Do.

      by

      Much of what’s in the Constitution is vague, imprecise or downright unclear. But some parts are very straightforward.For example, Article 1, Section 4 states that “the Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”Or, as Justice Antonin Scalia — quoting a previous ruling — argued in 2013 in his opinion for the court in Arizona v. Inter Tribal Council of Arizona, “The power of Congress over the ‘Times, Places and Manner’ of congressional elections ‘is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith.’”The legal scholar Pamela S. Karlan put it this way in a 2006 report on the Voting Rights Act: “The Supreme Court’s recent decisions under the elections clause have confirmed the longstanding interpretation of the clause as a grant of essentially plenary authority.” In other words, Congress has absolute, unbending power to regulate federal elections as it sees fit.For this reason among many, it has been strange to see Republican politicians — including some self-described “constitutional conservatives” — denounce the Democrats’ proposed new voting rights legislation as an illegitimate “federal takeover” of federal elections.In an op-ed for The Washington Post, former Vice President Mike Pence denounced the bills and the effort to pass them as a “federal power grab over our state elections” that would “offend the Founders’ intention that states conduct elections just as much as what some of our most ardent supporters would have had me do one year ago.”On Twitter, the governor of Mississippi, Tate Reeves, called the bill — which would allow for same-day voter registration, establish Election Day as a national holiday and expand mail-in voting — “an unconstitutional federal takeover of our elections” that would “make it easier to cheat.”Not to be outdone, Mitch McConnell slammed the bill as a “sweeping, partisan, federal takeover of our nation’s elections.”“We will not be letting Washington Democrats abuse their razor-thin majorities in both chambers to overrule state and local governments and appoint themselves a national Board of Elections on steroids,” the Senate Republican leader declared.Although Reeves is the only lawmaker in this group to have called the Democratic election bill “unconstitutional,” the clear implication of the Republican argument is that any federal regulation of state elections is constitutionally suspect. We already know that this is wrong — again, the Constitution gives Congress the power to regulate state elections for federal office — but it’s worth emphasizing just how wrong it is.In addition to the Supreme Court, which has affirmed — again and again — the power of Congress to set “the Times, Places and Manner” of federal elections, there are the framers of the Constitution themselves, who were clear on the broad scope of the clause in question.Alexander Hamilton defends it in Federalist 59 as a necessary bulwark against the interests of individual states, which may undermine the federal union. “Nothing can be more evident than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy,” Hamilton writes.“If the State legislatures were to be invested with an exclusive power of regulating these elections,” he continues, “every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the Union.”“Every government,” he says with emphasis, “ought to contain in itself the means of its own preservation.”Similarly, as the historian Pauline Maier recounted in “Ratification: The People Debate the Constitution, 1787-1788,” James Madison saw the Election Clause as a measure that would “allow Congress to use its power over elections against state electoral rules that were ‘subversive of the rights of the People to a free & equal representation in Congress agreeably to the Constitution.’”The 15th Amendment to the Constitution, ratified in 1870, expanded and reaffirmed the power of Congress to regulate federal elections, stating, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” and “The Congress shall have power to enforce this article by appropriate legislation.”Both the Enforcement Act of 1870, which established criminal penalties for interfering with the right to vote, and the Enforcement Act of 1871, which created a system of federal oversight for congressional elections, were passed under the authority granted by the Elections Clause and the 15th Amendment. The proposed Federal Elections Bill of 1890, which would have allowed voters to request direct federal supervision of congressional elections, was also written pursuant with the government’s expressly detailed power under the Constitution.It is one thing to say that a new election bill is unnecessary and that it attempts to solve a problem that does not exist. In large part because of the efforts of voting rights activists trying to overcome the obstacles in question, voter suppression laws do not appear to have a substantial impact on rates of voting, and overall voter turnout has increased significantly since the Supreme Court undermined the Voting Rights Act in 2013.But there is no question, historically or constitutionally, that Congress has the authority to regulate federal elections and impose its rules over those adopted by the states. Nor does this have to be bipartisan. Nothing in Congress does.The 1960s were one of the few times in American history when support for voting rights — or at least the voting rights of Black Americans — did not fall along strictly partisan lines. For a part of the 19th century, Republicans took the lead as the party of expanding the vote. Today, it is the Democratic Party that hopes to secure the right to vote against a political movement whose clear ability to win votes in fair elections has not tempered its suspicion of easy and unrestricted access to the ballot.There are times when the federal government needs to take election rules out of the hands of the states. Looking at the restrictions and power grabs passed by state Republican lawmakers in the wake of Donald Trump’s defeat, I’d say now is one of those times. It may not happen anytime soon — the voting rights legislation in question went down in defeat this week — but it should remain a priority. The right to vote is fundamental, and any attempt to curtail it should be fought as fiercely and as aggressively as we know how.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 75 Shares129 Views

      in Elections

      Talking to Voters From Both Parties

      by

      More from our inbox:The Legality of a Vaccine Mandate for Businesses‘What Can Marriage Give Us?’  Mark Peterson for The New York TimesTo the Editor:Re “What Voters Really Think About the State of America” (Opinion, Jan. 8):The most upsetting article I’ve read recently regarding the events of Jan. 6, 2021, and its aftermath is the report on the focus groups’ comments about the state of America. I was familiar with polls showing that a majority of Republican voters believe the lies told by Donald Trump and echoed by elected officials and television activists like Tucker Carlson.But it is distressing to read that six of the eight Republicans in the focus group still believe that Mr. Trump won the election. And it is mind-blowing to read their comments about “how the Democrats invaded the White House” and were pushing Covid to keep mail-in ballots.The lies must be refuted loudly and continuously. Responsible media should give no airtime or newspaper space to anyone who does not first admit that the 2020 election was fair and the results were properly counted. Until the rank and file learn that our election was fair and honest and worked as it should, the “state of America” will remain in jeopardy.Roy GoldmanJacksonville Beach, Fla.To the Editor:I am an independent voter, and have been in my 60 years of voting. I was not too surprised at the outcomes of your two focus groups. I have many friends and family who are registered Democrats or Republicans and know their opinions all too well. I would have been interested in a third group of independent voters. Maybe in the future you can incorporate this growing and important group of voters.Linda L. HortonAlbuquerqueEditors’ Note: Times Opinion plans to convene additional focus groups; the next will be with independent voters.To the Editor:I understand the purpose of your giving an opinion page over to average (whatever that means) Democrats and Republicans, but I nonetheless believe that The Times has missed the mark in doing so.The purpose of journalism is not to be evenhanded or to give equal size megaphones to “both sides.” The purpose of journalism is to tell the truth. Clearly one side is by and large telling the truth, whereas the other side appears quite delusional. And it’s telling that I don’t have to state which is which for people to know what I mean.The Times can and should do better for its readers.Jonathan EngelNew YorkTo the Editor:If these interviews are supposed to help me understand the thinking of Republicans, you’ve failed.Reading what they think just made me angry — again! How some of them came up with their responses is totally beyond me, except I know they have unquestioningly accepted lies. That is what is frustrating, to hear those lies repeated over and over without any attempt on their part to use critical thinking.My stomach is churning and I’m sure my blood pressure has peaked. I can live, just barely, with the horrible mess the world is in, but I don’t need any help with my despair!Sara JoslinNew Cumberland, Pa.The Legality of a Vaccine Mandate for Businesses Jim Wilson/The New York TimesTo the Editor:Re “Top Court Leans Toward Blocking Vaccine Mandate” (front page, Jan. 8):Certain Supreme Court justices appear skeptical regarding the constitutionality of the Biden administration’s vaccine mandate for certain businesses. We should remember, however, that the court is not ruling on the constitutionality of that mandate, only on whether it should issue an injunction to prevent its being enforced while its constitutionality is being decided.In making a decision on whether an injunction should be issued, the justices would naturally want to consider the harm of issuing an injunction versus the harm of not issuing an injunction.Suppose they decided not to issue an injunction. What’s the worst that might happen? Well, some people who may not want to be vaccinated may get the lifesaving vaccine anyway.And if they do issue the injunction? Well, some people who do not want to be vaccinated may die.Seems pretty clear-cut to me.Stephen PolitBelmont, Mass.To the Editor:Dear Chief Justice Roberts,I respect the principle that limits on decision-making by federal agencies can be necessary and protective. This principle would be a vital response to an overly authoritarian executive branch.I urge you to uphold this principle — while making an exception for vaccine mandates.To return this national health issue to individual states and Congress — at this time of medical crisis and excessive cultural divide — will further politicize and undermine our nation’s ability to respond to this public health issue in a unified manner.Principles are vitally important. But wise and flexible leadership requires appropriate exceptions.Jared D. KassConcord, Mass.‘What Can Marriage Give Us?’  María MedemTo the Editor:Re “Divorce Doesn’t Have to Be Lonely,” by Kaitlyn Greenidge (Opinion guest essay, Sunday Review, Jan. 9):A widow of nine years after five decades of marriage, I know that you can go it alone. Not everyone needs to marry. But I ask, What can marriage give us? As an introvert and a writer, I prized private time. Marriage required compromise and working out problems instead of walking out.We had counseling several times, at which I learned that my little ego was as precious as his. Only in a relationship could I have learned how best to live in our world of rugged individualists. I assert myself more confidently, but also listen better.Diana MorleyTalent, Ore. More

    • 138 Shares99 Views

      in Elections

      Why Joe Biden Needs More Than Accomplishments to Be a Success

      by

      No president since Ronald Reagan has achieved a more ambitious domestic legislative agenda in his first year than Joe Biden. With a razor-thin congressional majority — far smaller than that of Barack Obama — President Biden has delivered two enormous spending bills, with another, the Build Back Better act, likely on its way. Elements of these bills will have a lasting effect on the economy into the next decade; they also push the country to the left.Every president since Reagan has tacked to the rightward winds set in motion by the conservative movement. Even Mr. Obama’s stimulus bill and the Affordable Care Act owed as much to conservative nostrums about the market and runaway spending as they did to liberal notions of fairness and equality. Mr. Biden has had to accommodate the demands of Senators Joe Manchin and Kyrsten Sinema, but their intransigence has not had nearly the constraining effect that the voices of austerity and market fetishism had on Bill Clinton or Mr. Obama.Yet over the past several months, Mr. Biden’s presidency has been dogged by a sense of failure. Critics, friendly and not so friendly, point to what he has not delivered — voting rights, immigration reform, a $15 federal minimum wage, labor law reform and a path to freedom from personal debt and fossil fuels. Democrats fear that Mr. Biden’s plummeting approval ratings and the party’s losses in the November elections indicate that the Republicans will take back Congress in the midterms.No president, however, achieves his entire agenda. And presidents have suffered first-term losses greater than those currently anticipated for 2022.The real cause of the unease about Mr. Biden lies elsewhere. There is a sense that however large his spending bills may be, they come nowhere near to solving the problems they are meant to address. There is also a sense that however much in control of the federal government progressives may be, the right is still calling the shots.The first point is inarguable, especially when it comes to climate change and inequality. The second point is questionable, but it can find confirmation in everything from a conservative Supreme Court supermajority to the right’s ability to unleash one debilitating culture war after another — and in the growing fear that Republicans will ride back into the halls of power and slam the doors of democracy behind them, maybe forever.There’s a sense of stuckness, in other words, that no amount of social spending or policy innovation can seem to dislodge. The question is: Why?A prisoner of great expectationsThough it came out in 1993, Stephen Skowronek’s “The Politics Presidents Make” helps us understand how Mr. Biden has become a prisoner of great expectations.American politics is punctuated by the rise and fall of political orders or regimes. In each regime, one party, whether in power or not, dominates the field. Its ideas and interests define the landscape, forcing the opposition to accept its terms. Dwight Eisenhower may have been a Republican, but he often spoke in the cadences of the New Deal. Mr. Clinton voiced Reaganite hosannas to the market.Regimes persist across decades. The Jeffersonian regime lasted from 1800 to 1828; the Jacksonian regime, from 1828 to 1860; the Republican regime, from 1860 to 1932; the New Deal order, from 1932 to 1980.Reagan’s market regime of deference to the white and the wealthy has outlasted two Democratic presidencies and may survive a third. We see its presence in high returns to the rich and low wages for work, continents of the economy cordoned off from democratic control and resegregated neighborhoods and schools. Corporations are viewed, by liberals, as more advanced reformers of structural racism than parties and laws, and tech billionaires are seen as saviors of the planet.Eventually, however, regimes grow brittle. Their ideology no longer speaks to the questions of the day; important interests lose pride of place; the opposition refuses to accept the leading party and its values.Every president presides over a regime that is either resilient or vulnerable. That is his situation. When Eisenhower was elected, the New Deal was strong; when Jimmy Carter was elected, it was weak. Every president is affiliated or opposed to the regime. That is his story. James Knox Polk sought to extend the slavocracy, Abraham Lincoln to end it. The situation and the story are the keys to the president’s power — or powerlessness.When the president is aligned with a strong regime, he has considerable authority, as Lyndon Johnson realized when he expanded the New Deal with the Great Society. When the president is opposed to a strong regime, he has less authority, as Mr. Obama recognized when he tried to get a public option in the Affordable Care Act. When the president is aligned with a weak regime, he has the least authority, as everyone from John Adams to Mr. Carter was forced to confront. When the president is opposed to a weak regime, he has the greatest authority, as Thomas Jefferson, Andrew Jackson, Lincoln, Roosevelt and Reagan discovered. These presidents, whom Mr. Skowronek calls reconstructive, can reorder the political universe.All presidents are transformative actors. With each speech and every action, they make or unmake the regime. Sometimes, they do both at the same time: Johnson reportedly declared that with the passage of the Civil Rights Act of 1964, the Democrats had lost the South for a generation, thereby setting the stage for the unraveling of the New Deal.What distinguishes reconstructive presidents from other presidents, even the most transformative like Johnson, is that their words and deeds have a binding effect on their successors from both parties. They create the language that all serious contestants for power must speak. They construct political institutions and social realities that cannot be easily dismantled. They build coalitions that provide lasting support to the regime. Alexander Hamilton thought every president would “reverse and undo what has been done by a predecessor.” Reconstructive presidents do that — in fact, they reverse and undo the work of many predecessors — but they also ensure that their heirs cannot.Politics is not physics. A president opposed to the established order may seek to topple it, only to discover that it is too resilient or that his troops are too feeble and lacking in fight. Where we are in political time — whether we are in a reconstructive moment, ripe for reordering, or not — cannot be known in advance. The weakness or strength of a regime, and of the opposition to the regime, is revealed in the contest against it.What is certain is that the president is both creature and creator of the political world around him. Therein lies Mr. Biden’s predicament.The language of reconstructionHeading into the 2020 Democratic primaries, many people thought we might be in a reconstructive moment. I was one of them. There was a popular insurgency from the left, heralding the coming of a new New Deal. It culminated in the Nevada caucus, where people of color and young voters — an emergent multiracial working class — put Bernie Sanders over the top, ready to move the political order to the left.There also were signs that the Reagan regime was vulnerable. Donald Trump’s candidacy in 2016 suggested that conservative orthodoxies of slashing Social Security and Medicare and waging imperial warfare no longer compelled voters. Mr. Trump’s presidency revealed a congressional G.O.P. that could not unite around a program beyond tax cuts and right-wing judges.As a candidate, Mr. Biden rejected the transformation Mr. Sanders promised and assured wealthy donors that “nothing would fundamentally change” on his watch. Yet there were signs, after he won the nomination and into the early months of his administration, of a new, “transformational” Mr. Biden who wanted to be the next F.D.R. The combination of the Covid economy, with its shocking inequalities and market failures, and a summer of fire and flood seemed to authorize a left-leaning politics of permanent cash supports to workers and families, increased taxes on the rich to fund radical expansions of health care, elder care and child care, and comprehensive investments in green energy and infrastructure, with high-paying union jobs.Most important, the package cohered. Instead of a laundry list of gripes and grievances, it featured the consistent items of an alternative ideology and ascendant set of social interests. It promised to replace a sclerotic order that threatens to bury us all with a new order of common life. This was that rare moment when the most partisan of claims can sound like a reasonable defense of the whole.Yet while Mr. Biden has delivered nearly $3 trillion in spending, with another $1.5 trillion to $2 trillion likely to pass, he has not created a new order. In addition to a transformation of the economy, such an order would require a spate of democracy reforms — the elimination of the filibuster and curbing of partisan gerrymandering, the addition of new states to the union, and national protection of voting rights and electoral procedures — as well as labor law reforms, enabling workers to form unions.What makes such reforms reconstructive rather than a wish list of good works is that they shift the relations of power and interest, making other regime-building projects possible. Today’s progressive agenda is hobbled less by a lack of popular support than by the outsize leverage conservatives possess — in the Senate, which privileges white voters in sparsely populated, often rural states; in the federal structure of our government, which enables states to make it difficult for Black Americans to vote; and in the courts, whose right-wing composition has been shaped by two Republican presidents elected by a minority of the voters. No progressive agenda can be enacted and maintained unless these deformations are addressed.The only way to overcome anti-democratic forces is by seeding democracy throughout society, empowering workers to take collective action in the workplace and the polity, and by securing democracy at the level of the state. That is what the great emblems of a reconstructive presidency — the 14th Amendment, which granted Black Americans citizenship, or the Wagner Act, which liberated workers from the tyranny of employers — are meant to do. They give popular energy institutional form, turning temporary measures of an insurgent majority into long-term transformations of policy and practice.It’s not clear that Mr. Biden wants such a reconstruction. And even if he did, it’s not clear that he could deliver it.What is stopping Biden?The forces arrayed against a reconstruction are many.The first is the Republican Party. Here the party has benefited less from the “authoritarian” turn of Mr. Trump than from the fact that the Trump presidency was so constrained. As Mr. Skowronek argues, “Nothing exposes a hollow consensus faster than the exercise of presidential power.” At critical moments, exercising power was precisely what Mr. Trump was not able to do.Confronting the free fall of the New Deal, Mr. Carter unleashed a stunning strike of neoliberal and neoconservative measures: deregulation of entire industries; appointment of the anti-labor Paul Volcker to the Fed; a military buildup; and renewed confrontation with the Soviet Union. These defied his party’s orthodoxies and unraveled its coalition. Reagan ended the New Deal regime, but Mr. Carter prepared the way.For all his talk of opposition to the Republican pooh-bahs, Mr. Trump delivered what they wanted most — tax cuts, deregulation and judges — and suffered defeat when he tried to break out of their vise. Republicans repeatedly denied him funds to support his immigration plans. They overrode his veto of their military spending bill, something Congress had not been able to do in the Carter, Reagan, Clinton, George W. Bush and Obama administrations. Mr. Trump’s own administration defied his Russia policy. This combination of weakness and deference to the G.O.P. helped keep the Republicans — and the Reagan regime — together.The second obstacle is the Democratic Party. There’s a reason party elites, led by Mr. Obama, swiftly closed ranks, when the time came, behind Mr. Biden and against Mr. Sanders. They wanted continuity, not rupture.Likewise a portion of the base. Many Democrats are older, with long memories and strong fears of what happens when liberals turn left (they lose). Newer recruits, who gave Mr. Biden the edge in some key districts, usually in the suburbs, are what the Princeton historian Matt Karp calls “Halliburton Democrats,” wealthy defectors from the Republican Party.“A regime is only as vulnerable as the political forces challenging it are robust,” writes Mr. Skowronek. That robustness is yet to be demonstrated. Despite the clarity of the path the Democrats must take if they hope to topple the Reagan order, it’s not clear the party wants to take it.The third obstacle to a Biden reconstruction is what Mr. Skowronek calls the “institutional thickening” of American politics. Since the founding era, the American political system has acquired a global economy, with the dollar as the world’s currency; a government bureaucracy and imperial military; a dense ecology of media technologies; and armies of party activists. While these forces offer the modern president resources that Jefferson never had, they also empower the modern-day equivalents of Jefferson’s opponents to resist a reconstruction. Should Mr. Biden attempt one, could he master the masters of social media? Mr. Trump tried and was banned from Twitter.The real institutions that get in the way of Mr. Biden and the Democrats, however, are not these latter-day additions of modernity but the most ancient features of the American state.The power of Senators Manchin and Sinema is an artifact of the constitutional design of the Senate and the narrowness of the Democratic majority, which itself reflects the fact that the institution was created to defend slave states rather than popular majorities. Their power is augmented by the centuries-old filibuster, which has forced Mr. Biden to jam many programs into one vaguely named reconciliation bill. That prevents him from picking off individual Republicans for pieces of legislation they might support (as he did with the infrastructure bill).Should the Republicans take the House in 2022, it will probably not be because of Tucker Carlson but because of gerrymandering. Should the Republicans take back the White House in 2024, it will probably be because of some combination of the Electoral College and the control that our federalist system grants to states over their electoral procedures.A polarized electorate divided into red and blue states is not novel; it was a hallmark of the last Gilded Age, which put the brakes on the possibility of a presidential reconstruction for decades. As the political scientist E.E. Schattschneider argued, the division of the country into the Republican North and Democratic South made the entire polity “extremely conservative because one-party politics tends strongly to vest political power in the hands of people who already have economic power.”How do we move past Reagan?Every reconstructive president must confront vestiges of the old regime. The slavocracy evaded Lincoln’s grasp by seceding; the Supreme Court repeatedly thwarted F.D.R. Yet they persisted. How?What each of these presidents had at their back was an independent social movement. Behind Lincoln marched the largest democratic mass movement for abolition in modern history. Alongside F.D.R. stood the unions. Each of these movements had their own institutions. Each of them was disruptive, upending the leadership and orthodoxies of the existing parties. Each of them was prepared to do battle against the old regime. And battle they did.Social movements deliver votes to friendly politicians and stiffen their backs. More important, they take political arguments out of legislative halls and press them in private spaces of power. They suspend our delicate treaties of social peace, creating turbulence in hierarchical institutions like the workplace and the family. Institutions like these need the submission of subordinate to superior. By withholding their cooperation, subordinates can stop the everyday work of society. They exercise a kind of power that presidents do not possess but that they can use. That is why, after Lincoln’s election, Frederick Douglass called the abolitionist masses “the power behind the throne.”An independent social movement is what Mr. Biden does not have. Until he or a successor does, we may be waiting on a reconstruction that is ready to be made but insufficiently desired.Corey Robin is a distinguished professor of political science at Brooklyn College and the City University of New York Graduate Center. He is the author of “The Reactionary Mind: Conservatism From Edmund Burke to Donald Trump” and “The Enigma of Clarence Thomas.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 113 Shares129 Views

      in Elections

      Supreme Court's Abortion Decision Could Spill Into Midterm Elections

      by

      Both sides anticipate that a Supreme Court decision scaling back abortion rights would roil next year’s elections, with Democrats sensing an advantage.WASHINGTON — A Supreme Court ruling to weaken or overturn the landmark Roe v. Wade decision in the middle of next year’s midterm election campaign would immediately elevate abortion rights into a defining issue and most likely reinvigorate efforts to overhaul the court itself.Even as the justices weigh the case of the Mississippi law barring most abortions after 15 weeks, the political clash is already intensifying, with Democrats warning supporters that the court is poised to reverse access to abortion 50 years after it was recognized as a constitutional right.“What is fundamentally at stake is that every woman in our country should be able to make her own health care decisions and chart her own destiny and have the full independence to do that,” said Senator Maggie Hassan, Democrat of New Hampshire, who is seeking re-election in a race with significant implications for control of the Senate.As the court heard arguments in the Mississippi case on Wednesday, it appeared that the six conservative justices were likely to uphold the state’s law despite the precedent set in 1973 by Roe, which held that states could not bar abortion before fetal viability, now judged to be around 22 to 24 weeks.Several of the justices suggested that they were willing to go another step and overturn Roe entirely, leaving states free to impose whatever bans or restrictions they choose. The court is likely to release its decision in the case at the end of its term in June or early July, just as campaigning in the midterms is getting into full swing.While the subject of abortion and the Supreme Court has traditionally been seen as more of an energizing issue for Republican and evangelical voters, Democrats say that situation could be reversed should the court undermine Roe, raising the possibility that abortion could be banned or severely limited in many states.That outcome, Democrats said, would transform the long fight over abortion rights from theory to reality and give new resonance to their arguments that a Democratic Congress is needed to protect access to the procedure and seat judges who are not hostile to abortion rights.Senator Maggie Hassan of New Hampshire and fellow Democrats have repeatedly criticized state Republicans for cutting off funding to Planned Parenthood and instituting new abortion restrictions.Anna Moneymaker/The New York Times“There is no question that should the decision be one that would overturn Roe v. Wade, it will certainly motivate our base,” said Senator Gary Peters of Michigan, the chairman of the Democratic Senatorial Campaign Committee. “Quite frankly, we know that a majority of the people in this country continue to believe it should be the law of the land.”“It will be an incredibly powerful issue,” Mr. Peters said.Republicans see advantages as well, saying it will validate their decades-long push to limit if not outlaw abortion and show that they should not back away from their efforts when they are succeeding.“Today is our day,” Representative Steve Scalise of Louisiana, the No. 2 House Republican, told abortion opponents outside the Supreme Court on Wednesday. “This is what we’ve been working for.”Aware that a decision undermining abortion access has political risks for them as well, Republicans say the fight will be just part of their 2022 message as they seek to tie Democrats to inflation, the chaotic withdrawal from Afghanistan and other subjects where they see a greater edge.“There’s a lot of issues out there,” said Senator Rick Scott, Republican of Florida and the chairman of the National Republican Senatorial Committee, suggesting the significance of abortion will vary from state to state. “Everybody’s going to take a position.”But it was quickly clear that some Republicans would embrace the drive against Roe.“I’m pro-life. I’m anti-Roe v. Wade,” Senator John Kennedy, the Louisiana Republican who is seeking a second term next year, said in a fund-raising appeal sent hours after the court debate. “There is not much else I can say other than that.”In addition to the congressional elections, how the justices dispose of the case holds potentially grave implications for the court itself. The stature and credibility of the court were prominent subtexts of Wednesday’s arguments, with Justice Sonia Sotomayor pointedly asking how the court would “survive the stench” of overturning Roe in what many would see as a blatantly political act.Representative Steve Scalise, Republican of Louisiana, in September. “Today is our day,” he told abortion opponents outside the Supreme Court on Wednesday.Stefani Reynolds for The New York TimesAfter Senate Republicans in 2016 blocked President Barack Obama from filling a Supreme Court vacancy with almost a year left in his term, progressives began calling for adding seats to the court or setting term limits on the now-lifetime appointments to offset what they saw as an unfair advantage seized by Republicans. Then, when Republicans seated Justice Amy Coney Barrett just days before the 2020 election, those calls intensified.However, President Biden, a former chairman of the Senate Judiciary Committee, has been lukewarm to the idea of tinkering with the court, and a commission he formed to study the idea is not expected to embrace significant changes.Understand the Supreme Court’s Momentous TermCard 1 of 5Mississippi abortion law. More