How hard will Democrats campaign against the Supreme Court itself?

As the 2016 election campaign wore on, the Supreme Court — and specifically, Senate Republicans’ blockade of nominee Merrick Garland — looked like it might be a potent campaign issue for Democrats. Polls showed an increasing number of Americans thought keeping the seat vacant was wrong. And for a time late in the summer, campaign polls seemed to reflect it as well.

Then it faded. And by the time voters voted, the Supreme Court was actually more of an animating issue for Republicans. While 18 percent of voters said the Supreme Court was their most important issue and voted for Hillary Clinton, 26 percent said the same and voted for Donald Trump.

Not only did Senate GOP Leader Mitch McConnell’s (R-Ky.) bare-knuckle gambit pay off by allowing a Republican president to fill the late Justice Antonin Scalia’s seat; Democrats failed to exact any quantifiable political price for it.

In overturning Roe v. Wade, the Supreme Court has now delivered Democrats what seems to be an even more ready-made campaign issue — and one that data suggests could pay and even is already paying dividends. But when it comes to precisely how to talk about the court itself — and how harshly to criticize an institution that could hamstring the Democrats’ agenda for years to come — Democrats have some decisions to make.

What’s become abundantly clear in recent weeks is that views of the Supreme Court have become historically polarized.

A Pew Research Center poll released this month showed 73 percent of Republicans and Republican-leaning voters had a favorable view of the court, compared to 28 percent of Democrats and Democratic leaners. That 45-point gap is the biggest on record since at least 1987.

An NBC News poll conducted last month showed Republicans had a positive view of the court by a 36-point margin, while Democrats had a negative one by a 51-point margin.

Similarly, the court’s abortion decision appears to be one of its most unpopular on record — and on an issue with huge implications for much of the population. Most polls show about 6 in 10 Americans disapprove of it, with the NBC poll showing a 51 percent majority disapprove “strongly.” And it’s difficult to find an analog. However polarizing cases like Bush v. Gore and Brown v. Board of Education were at the time, CNN’s Harry Enten noted recently that polls at the time showed they had majority support.

(About the best comparison I could find: The Supreme Court’s 1989 decision ruling that flag-burning was protected First Amendment speech. A Washington Post poll showed nearly 8 in 10 Americans disagreed with it, including 62 percent “strongly.”)

What’s more, the new polls show some of the groups that are most upset with the court are traditionally high-turnout groups — women and more-educated voters — suggesting those voters are there for Democrats to get to the polls if they play it right. Fully 64 percent of Democratic-leaning voters say the court has too much power, and nearly half of them — 46 percent — have a strongly unfavorable view of it.

There are few emotions more politically potent than anger. The question for Democrats is how to channel and capitalize on that anger — and, by extension, what remedies to offer.

President Biden, the White House and Democratic leaders have decried the ruling in Dobbs v. Jackson. But they’ve stopped short of some of their allies’ attacks on the legitimacy of the court itself.

Vice President Harris this weekend called it an “activist court,” while Biden has linked the Supreme Court to the most conservative wing of the GOP and decried what he characterized as a concerted attack on Americans’ rights.

“We cannot allow an out-of-control Supreme Court, working in conjunction with the extremist elements of the Republican Party, to take away freedoms and our personal autonomy,” he said in July.

He added last month: “The Supreme Court and the MAGA Republicans don’t have a clue about the power of women in this country. And they’re soon to find — they’re going to find out.”

But some on the left have wished Biden would go further in directly challenging the court’s legitimacy and turning the makeup of the court into a more central and urgent issue. Biden’s and Harris’s comments certainly gesture in the direction of the court being an extension of the Republican political movement, but they’re nothing compared to Senate Majority Leader Charles E. Schumer’s (D-N.Y.) 2020 broadside against the court or other recent comments from prominent liberals. Biden hasn’t exactly made this a central and consistent part of his electoral pitch.

The danger in going harder after the court itself — and not just its abortion decision — is twofold.

One is that it invites the next question: What are you going to do about it?

There are no ready and near-term answers for Democrats. Packing the court, like nuking the filibuster, is an often oversimplified supposed solution with uncertain potential consequences; it would be very difficult to execute and it could actually cut against Democrats when all is said and done. (It’s also something Biden has repeatedly declined to embrace.) The alternative might be to push for more modest reforms, like term limits — a path that’s also politically very difficult. Another perhaps unsatisfying option would be to tell Democrats that their votes are important to chipping away at the 6-to-3 conservative majority — when one day, eventually, seats on the court open up.

The second pitfall is that Biden has often preached about the sanctity of institutions — and seems to believe it. Institutionalists adhere to that vision because they see a danger in people regarding those institutions as illegitimate. If the entity charged with offering the final word on our laws is indeed written off by half the country, that opens up Pandora’s box both politically and democratically.

Biden might regard the court’s decision as being very bad. But the legitimacy of the court rests on the idea that people don’t necessarily view judges as an extension of the political branches. Pretending judges are unbiased, apolitical beings is overly idealistic, but how hard you question that ideal is a matter of degree.

There’s little question that Democrats could reap political benefits from the Supreme Court’s decision over the next eight weeks without making the court itself so central to its campaign; it’s a much simpler political sales job than the complex process that led to Garland’s blockade. But the lure of an effective boogeyman is often strong in politics. And how the Democrats talk about the court during the stretch run of the 2022 campaign could reverberate for a long time.

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Source: WP