If Trump Loses, We Might Owe the Supreme Court

They keep handing Biden all the arguments he needs to win.

(Photo by Alex Wong/Getty Images)

THE SUPREME COURT IS CAUSING great pain and upset to tens of millions of people, and it isn’t done yet. But in the end, by which I mean the day after the presidential election, America might owe the Court’s conservative supermajority a gracious thank-you note—“We couldn’t have done it without you!”—or even dinner.

The high court’s six conservative justices, half of them named by Donald Trump, could well be Joe Biden’s ticket to a second term. Like Trump himself, they are a scandal-and-controversy machine, constantly renewing old furors and creating new ones.

Democrats couldn’t ask for better material, or more of it. Whether the issue is abortion, guns, or the rule of law, and pondering if presidents are like kings and, if so, how much, there’s a ruling for that. Sometimes two or three. And if there isn’t yet, there will be soon.

The dramatic case that will first come to mind for most people is the Court’s June 2022 Dobbs decision revoking the constitutional right to abortion access. But there is also its Bruen decision one day earlier gutting state regulation of firearms. There is the March 2024 decision neutering the Fourteenth Amendment that is supposed to bar insurrectionists and their enablers from running for or holding federal office. There is the opinion last month upholding racial gerrymandering. And there is the Court’s tortured reasoning in last week’s 6–3 decision to overturn a Trump-era ban on bump stocks.

The justices said a bump stock does not turn a semiautomatic weapon into a machine gun because “it doesn’t make the weapon fire more than one shot with a single pull of the trigger,” as the AP put it. Never mind that it uses a different mechanism to make the weapon operate exactly like a machine gun. The decision instantly reminded everyone of why the Trump-era ban was imposed in the first place: the 2017 mass shooting at a huge country music festival in Las Vegas. The shooter high in his hotel room fired over a thousand rounds in eleven minutes. He had twenty-three assault style guns in his room, fourteen of them with bump stocks. He killed sixty people and injured hundreds more.

This is a prime example of a recurring problem for Trump, his MAGA followers, and Republicans in general: The Court’s rulings mean that politically inconvenient and sometimes traumatic reminders keep surfacing.

By early July, for example, the Court will decide whether people under domestic violence restraining orders should be allowed to own guns. Why are we even talking about this? Because its 2022 Bruen decision requires historical analogues and, sadly for women, domestic violence was not a thing in colonial America or long afterward. When two states outlawed wife beating in 1871, it was a major deal.

The January 6th Capitol attack will also be back in the news with a vengeance. Did the January 6th rioters try to obstruct an official proceeding? Did Trump? Congress was trying to confirm the states’ certified vote counts and finalize Biden’s win. The obstruction law, as the government argued, seems pretty clear: 

Whoever corruptly (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so. . . .

Should Trump have absolute immunity for his role in trying to overturn the 2020 election and stay in power? Is this a hard question? It shouldn’t be. People who want to be Dear Leader for life should go to some other country, not scheme to try to stay in the White House by nefarious means. When the ruling is handed down, whatever it says, there will be no escaping memories of those ugly days in late 2020 and early 2021.

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IN THE TWO YEARS SINCE Roe v. Wade was overturned, ending the constitutional right to abortion in place for forty-nine years, pregnant women have had to endure state abortion bans that endanger their lives and health, their futures, and their ability to bear children. The Court ruled just last week that mifepristone, the pill that accounts for nearly two-thirds of U.S. abortions, could stay on the market. But it did so on procedural grounds rather than the merits—meaning that mifepristone might yet face bans.

Still to come, whether the federal Emergency Medical Treatment and Labor Act overrides state abortion bans when pregnant women show up at hospital emergency rooms that receive Medicare funds. The act requires that patients be stabilized if their life or health is in danger, but Idaho—which brought the case—allows abortion only to protect lives, and insists their law preempts the standard of care you’d expect in a developed nation. Like ours.

That decision will draw attention once again to the crises that can occur at any point in a pregnancy, regardless of what a state bans and when, and the judgment calls that doctors must make amid persistent legal threats and medical uncertainties. So will the second anniversary of the Dobbs decision on Monday. The Biden-Harris campaign is organizing over thirty-five events to mark the date, and planning what it calls “storyteller” training so people can share their personal experiences and “put a face to Donald Trump’s cruel policies.” They’ve already released two powerful ads doing just that.

The sudden transformation of the abortion landscape has led to unexpected consequences, not least of them political, as Americans across the ideological spectrum adjust to this new world. Fourteen states have total abortion bans, five have bans after six to twelve weeks, and some fear the next targets could be IVF and even contraception. There are objections among religious conservatives to both, and Democrats are trying to get Republicans on record as for or against ensuring access.

All this in a diverse country, where nearly two-thirds of adults say abortion should be legal in all or most cases. Where voters have chosen to protect abortion access in all six states that put it on the ballot in 2022 and 2023, and where measures to enshrine abortion rights could be on the ballot in up to ten more states this year.

All this, and we haven’t even delved into Justice Clarence Thomas and his financial benefactors who are intensely interested in court business, the Court spouses with “Stop the Steal” ties—Martha-Ann Alito and her insurrection-friendly flags, Ginni Thomas and her involvement in schemes to keep Trump in office after he lost—or the rampant conflicts of interest and refusals to recuse, entertain a stiff ethics code, or even answer questions on Capitol Hill.

Character matters, as the Biden campaign says in a new ad about Trump’s felony convictions. All of it matters—accountability, democracy, freedom, the general welfare, and the blessings of liberty. All of it is at risk from Trump and the Court he made.

That’s got to help Joe Biden. So thanks in advance for the assist, and (fingers crossed) dinner’s on me.