Justice Ginsburg's parting gift?

Justice Ginsburg's parting gift?

If the Democratic Party retains control of Congress in next year’s midterm elections, it will have the late Justice Ruth Bader GinsburgRuth Bader GinsburgCouric defends editing of RBG interview Biden's Supreme Court commission ends not with a bang but a whimper The Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle MORE to thank.

Had she not passed away — and had former President Donald TrumpDonald TrumpHarris stumps for McAuliffe in Virginia On The Money — Sussing out what Sinema wants Hillicon Valley — Presented by Xerox — The Facebook Oversight Board is not pleased MORE not filled her seat at the bench with Justice Amy Coney BarrettAmy Coney BarrettA politicized Supreme Court? That was the point Solid majority believes Supreme Court rulings based more on politics than law  Locked and Loaded: Supreme Court is ready for a showdown on the Second Amendment MORE — it is virtually certain that the Supreme Court would have acted to block the enforcement of Texas’s new, draconian anti-abortion law, and Roe v. Wade would have remained a judicial bar to state legislation aimed at denying a woman’s right to choose. The Supreme Court’s refusal to block the enforcement of the Texas legislation last Wednesday, however, has effectively moved the question of abortion rights squarely back into the political sphere. There are or at least may be — the Supreme Court appears to be saying — legislative opportunities to turn back the clock to the pre-Roe era.

Whatever public face Republican politicians may try to put on it, this is, for the Republican Party, a political catastrophe of the first order.


Since Roe v. Wade became the law of the land, Republican politicians have been in the blissful position of being able to have their cake and eat it, too. Republican politicians have been able to toss red meat to the socially conservative wing of their party, making finger- and Bible-waving commitments to banning abortion — safe in the knowledge that they would never have to act on these public commitments, which would, after all, be deal-breakers for pro-choice members of the party.

For their part, moderate Republican voters — and, yes, Virginia, there still are such people, found not only on many corporate boards and in CEO suites, but at Kiwanis or Rotary Club meetings and driving kids to soccer practice all across the country — these moderate Republican voters were free to ignore their party’s rhetorical stance on abortion, knowing that it was in fact entirely irrelevant. They were safe. Republican politicians would protect pocketbook and privilege; the Supreme Court could be counted on to guarantee a penumbral right to private life.

Republican politicians now find themselves in what is, in many districts and in many state-wide elections, the politically suicidal position of having to vote for the legislation they have rhetorically endorsed.

And this isn’t some distant nightmare. Pressures are substantial in most Republican-controlled states to pass Texas-style legislation — immediately. And in blue and purple states, the pressures are no less substantial to at least vocally recommit to a ban.

Virginia, with its off-year gubernatorial election, may be the first place where we see this process play out. Republican gubernatorial candidate Glenn Youngkin is already in the uncomfortable situation of having to reiterate that he is pro-life, while also distancing himself from Texas-style legislation. This is a position that is not likely to generate enthusiasm among his party’s socially conservative base, nor on the other hand to reassure pro-choice Republicans whose votes are also essential. The glee with which Democratic gubernatorial candidate Terry McAuliffe will be skewering Mr. Youngkin is already apparent.

In fact, from a Republican Party point of view, it is hard to imagine a worse case for the Supreme Court to have chosen as a vehicle for tossing abortion rights back into the political realm. The Texas statute does not make exceptions for rape or incest. Equally problematic, by leaving only a six-week window after conception for women to obtain medical assistance in terminating a pregnancy, it effectively closes the door to abortion — except of the coat-hanger variety — to many women who, at six weeks, are still completely unaware of an unsought pregnancy or who, as a victim of incest or rape, are still coming to emotional grips with the violence that has been inflicted on them.

Adding insult to injury, by allowing suits to be filed in the home county of the prosecuting citizen, rather than requiring that they be filed where the alleged act was committed, the statute assures that suburban liberals can be found guilty and sentenced by unsympathetic rural conservatives — not an outcome likely to be very appealing to suburban liberals.

Effectively, the absence of Justice Ruth Bader Ginsburg’s wise voice on the Supreme Court has resulted in the Texas anti-abortion law becoming the platform on which Republicans nation-wide will find themselves dared or compelled to run.

However attractive this platform may be in some localities, it is not a winning platform nation-wide.

The Republicans may have rid the Court of justices like Ginsburg, but in doing so they have guaranteed their own minority status. 

If there is an afterlife, somewhere Justice Ginsburg is watching, cognizant of the irony.

Edward Rhodes was dean of George Mason University’s School of Public Policy — now George Mason University’s Schar School of Policy and Government — from 2010 to 2013.