Ironically, if Donald Trump were President, the Supreme Court Might Have Left Roe Alone

by Benjamin Studebaker

A leaked draft opinion is circulating indicating that the Supreme Court may plan to overturn Roe v. Wade, the decision that protects abortion rights. The draft opinion is not an official ruling, and it’s still possible that the Supreme Court may issue a different opinion. Draft opinions are not usually leaked. Many on the right think that the draft was leaked by a liberal staffer to subject the court to political pressure. But it’s also possible that a conservative leaked the draft as a way of politically testing the waters for a highly controversial version of the decision. By leaking a highly extreme opinion, more political space is potentially created for a less extreme, but still very controversial decision. Supreme Court justices do worry about the political legitimacy of the court. They do worry that if they push things too far, congress may seek to impeach some of the justices of pack the court. That brings me to the position I want to put in front of you today–if Donald Trump were president, the Supreme Court might be more skittish about touching Roe. That may sound like a bizarre view. Give me a chance to explain.

It is now impossible to deny that the Biden presidency has been marred by substantial inflation. The inflation rate has been over 5% since Spring 2021. It has been over 7% since the start of 2022. It is over 8% right now. The COVID-19 lockdowns clearly disrupted supply chains very heavily. Both Trump and Biden passed federal spending packages to help people make it through the lockdowns. But these spending packages did not prevent the American people from paying the price of the lockdowns. They changed the way we pay for them. Instead of subjecting many vulnerable Americans to prolonged periods of devastating unemployment, we are all collectively paying for the price of the lockdown in the form of a higher rate of inflation. This tradeoff was, in my view, worthwhile. It’s better for us all to endure a period of inflation than for a chunk of America to slip through the cracks, falling into bankruptcy and foreclosure. At the time, I argued that the lockdowns would have grave economic effects. I wrote:

“…the virtuous rich have effectively decided that it is better for these people to be subjected to a depression than it is for them to get the virus. The rich–who are largely insulated from the consequences of a depression–feel better about impoverishing tens of millions of people than they do about killing a few million. That, at the end of the day, is what is driving our policy–what makes virtuous rich people feel good about themselves.”

Once we had committed to the lockdown, I argued that the federal government should provide even stronger benefits. If they’d listened to me, inflation would be even higher than it is now. But I thought, and still think, that the inflationary effects are better than the alternative, a lengthy depression in which tens of millions of people are impoverished.

But regardless of how you feel about the economics, inflation has political consequences. We know that every point of inflation hurts the incumbent president’s party, especially when inflation is associated with shortages. Politicians go to great lengths to avoid inflation because they know that it can make re-election nearly impossible. So, once it was decided that we were going to do a lockdown, either there was going to be a depression or a period of substantial inflation. Even the liberal economists who believed inflation would be “transitory” acknowledged that a period of elevated inflation was the inevitable consequence of the lockdown policy.

This meant that whoever was elected president in 2020 would struggle in the 2022 midterms. Incumbent presidents generally have a tough go of it in midterms anyway, and elevated inflation would make it a near-certainty that the incumbent president’s party would be badly waxed. This made it a very bad idea to vote for Joe Biden. Biden would be blamed for the consequences of the pandemic. Frustrated Americans–tired of inflation and lockdown restrictions–would move to the right. A red wave would hit in 2022, depriving the Democrats of their congressional majority. Republicans would then spend the rest of the Biden presidency shutting down the government in endless budget wars. During the Obama administration, these tactics slowed the economic recovery, especially in rural areas:

Obama and the Democrats were blamed, in part because the incumbent president’s party is always blamed for the economy. But it didn’t help that Obama did relatively little to improve conditions in his first two years, even when he enjoyed a congressional supermajority. This created a lot of resentment, and this resentment was channeled in cultural directions, giving rise to Donald Trump.

The same tactics will be deployed again when the Democrats lose the 2022 midterms, and it will generate resentment, and that resentment will help Trump (or someone like Trump) in 2024 and beyond.

But what does all of this have to do with abortion? At this point, a clear majority of Supreme Court justices want to revise or reject the Roe decision. But these justices have to worry, because if the decision undermines the court’s legitimacy and the Democrats are in a strong political position, they can potentially retaliate against the court. Democrats have talked about impeaching justices, and they have talked about court packing, primarily to deter the court from going after Roe.

But with the Democrats enjoying only a thin senate majority and on the brink of losing the midterms, these threats aren’t credible. By the time the Democrats are in position to act on any of them, it will be several years from now, at least. The public will have become more accustomed to whatever new abortion laws the red states pass. It takes a lot for the public to support a direct attack on the court. Even at the height of his popularity, Franklin Roosevelt was unable to get the public to support court-packing. If the Democrats have to wait years before they even get a chance to challenge the court, they are unlikely to command enough public support to push anything through.

In effect, the court is calling the Democrats’ bluff. With only 50 senators, the Democrats may not even be able to pass legislation defending abortion rights before the midterms, much less take any kind of retaliatory action against the court. Once the Democrats lose the midterms, it will be eons before they will be able to do anything about this at all.

It would be a different story if Donald Trump were president. If Trump were president, he would be paying the price politically for the economic cost of the lockdowns. He would be blamed for inflation. He would be blamed for the situation in Afghanistan–he was the one who ordered the withdrawal. He would be blamed for the war in Ukraine–it would be suggested that his friendliness toward the Russians encouraged the invasion. The Republicans would be in terror of a blue wave in 2022, and the Supreme Court would be worried that the blue wave might be strong enough to cause them trouble, politically. In that context, touching Roe would be like kicking a hornets’ nest.

But that context is not our context. No, the American left bought into a series of “harm reduction” arguments that made sweeping and largely false assumptions about what the differences between a Trump and Biden presidency would be. I pointed out that this was a mistake at the time. People didn’t listen. Now American politics is being plunged into an intense round of culture war. The performative (and highly lucrative) screaming about abortion will prevent ordinary people’s economic needs from being heard, much less addressed. This will further weaken the left, and further polarize Americans, and strengthen the position of the right in the long-term.

Great job, guys.