What a difference six months make. Earlier this year, it was generally conceded that Republicans would sweep to victories in the midterm elections, giving them control of the House and Senate.
Yet as of Friday, Nate Silver’s FiveThirtyEight election forecast gives Democrats more than a 2-to-1 probability of maintaining control of the Senate. And it even gives them a puncher’s chance — almost 1 in 3 — of maintaining control of the House, too.
Why the turnaround? Pundits point to falling gas prices and President Joe Biden’s recent legislative victories.
But if the Democrats claim victory in November, the person most responsible will be someone who passed away two years ago — Supreme Court Justice Ruth Bader Ginsburg.
Here’s why.
Last June, the news media reported that the Supreme Court had overruled Roe v. Wade, the 1973 case that recognized a constitutional right to abortion. And the vote in the case that brought an end to Roe, Dobbs v. Jackson Women’s Health Organization, was not even close: Six out of nine justices ruled to return the issue of abortion to the states.
But the decision was actually more nuanced. The news media largely ignored the concurring opinion by Chief Justice John Roberts. True, Roberts was one of the six justices in the majority because he agreed that the Mississippi abortion restrictions at issue were constitutional. But Roberts specifically refused to join the other five justices who overruled Roe. He contended that stare decisis — the principle that the Supreme Court should not overrule a precedent without very compelling reasons — was an argument in favor of affirming Roe’s half-century-old doctrine. (His reasoning was similar to that found in his 2012 opinion, which provided the deciding vote in the court’s decision to uphold Obamacare.)
So actually, the vote to overrule Roe was only 5-4. And the deciding vote to overrule was cast by the newest member of the court, Justice Amy Coney Barrett. Barrett, of course, was appointed in 2020 to fill the vacancy created by the death of Ginsburg.
The court’s decision to overrule Roe has created a tsunami of support for pro-abortion rights Democrats. This has been evidenced by everything from the Kansas abortion referendum vote and increased Democratic fundraising to the results of House special elections. Clearly, the Dobbs decision has galvanized support for Democrats in the upcoming elections.
But consider this. Many liberals were upset when Ginsburg refused to resign during President Barack Obama’s two terms. If she had, Barrett would not have provided the fifth vote to overrule Roe. Instead, Obama’s appointee would almost certainly have provided the fifth vote to affirm Roe. So if Ginsburg had resigned, Roe would still be good law.
But if Ginsburg had resigned, abortion would not be an issue in this year’s campaign. That means the fundraising bump caused by Dobbs would never have happened. That means the increased Democratic voter interest because of abortion would never have materialized. That means that the Republicans would right now probably be predicted to win the Senate and the House.
The law of unintended consequences works in strange ways. In the long run, Ginsburg’s refusal to resign cost Democrats an additional Supreme Court appointment.
But in the short run, her decision may result in Democrats keeping control of one or both houses of the legislature in November.
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ABOUT THE WRITER
Timothy P. O’Neill is an emeritus professor at the University of Illinois Chicago School of Law.
