This week has been dark. The Texas GOP's wildly unconstitutional anti-abortion law is in force. For millions of women in Texas, abortion is illegal. This is not a theoretical construct or a threat. Women can't get abortions right now.
The scenes from Texas are heart-breaking:
One young woman arrived at her first appointment to the clinic that same night. She was a drug user, she told Sadler, and set to begin serving a five-year prison sentence in a week. She already had three children at home. She didn’t want to deliver a baby in jail.
She dropped to her knees on the cold tile floor in front of Sadler, begging her to take her, to perform the abortion.
In Texas, patients have to wait 24 hours after their first appointment to get an abortion. The woman was 12 weeks pregnant, and on Wednesday, she’d be too far along to get the procedure.
It's worth understanding how dystopian the law is. Rather than having the government enforce an abortion ban in violation of Roe v. Wade, the legislature gives everyone the right to sue abortion-providers or anyone who even so much as intends to help someone get an abortion. Further, the law is based on the farcical notion that an embryo has a heartbeat just six weeks after conception, when many women don't even know they're pregnant.
The right wing justices on the Supreme Court surprised anti-abortion advocates and legal observers by letting the law go into force. Their reasoning was farcical, too: because no one had sued under the law yet, they simply couldn't rule on the matter. In other words, as long as a GOP state legislature constructs a complex enough enforcement mechanism for an anti-abortion law, the court will throw up its hands and force women who don't have the means to leave Texas to give birth against their will, at least, perhaps, until another challenge lands on their desks.
An Anemic Response to a Democracy in Crisis
So what are Democrats doing about it?
The simplest solution would be to unpack the court and appoint new justices, making up for the stolen seat under Obama, which eventually went to Neil Gorsuch, and, arguably, the comically rushed Amy Coney Barrett nomination. But very few Democrats are talking about this.
So far, the Biden administration has pledged some legal action and Speaker Pelosi said she'll schedule a vote on a bill that would codify reproductive freedom into federal law, but as with all legislative action that doesn't explicitly touch on the budget, that bill is likely to die in the Senate without filibuster reform.
In April, Biden issued an executive order that tasked a commission with studying court reform, something politicians often use to delay dealing with an issue and give themselves some cover for an eventual policy decision. That commission could issue recommendations some time in the winter if it sticks to its schedule.
That said, some Democrats have introduced legislation that would unpack the court. The Judiciary Act of 2021, introduced by Sen. Ed Markey (D-MA), Rep. Hank Johnson (D-GA-4), Rep. Mondaire Jones (D-NY-17) and House Judiciary Committee Chairman Jerry Nadler (D-NY-10), would add four justices to the court.*
It Doesn't Have to Be This Way
We should be clear about what Republicans and Democrats do and don't have the power to do right now.
Republicans have the power to steal Supreme Court seats, subvert elections, and govern without winning a majority of votes.
Democrats have the power to nuke the filibuster, ignore the unelected Senate parliamentarian, pass democracy reform, and unpack the court.
But only one of those parties is exercising its power.
Many elected Democrats will object: we can't do these reforms without votes from Sen. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ). That's true. So why not try and see if you can flip them or get them to comprise with you? The alternative, in which Republicans keep kicking your ass and stripping people of their civil and human rights, seems worse.
But elected Democrats are reticent to take those risks. Nobody wants to rock the boat. Nobody wants to take tough votes, even on popular issues. And nobody wants to alienate a colleague they might need to deal with later.
So we get stuck in an endless cycle that goes something like this:
Politicians: We don't have the votes.
Advocates: You don't know that until you schedule the vote.
Politicians: But we don't have the votes!
Advocates: But you don't know that until you schedule the vote!
Indeed, in the the lead-up to Amy Coney Barrett's confirmation, progressive advocates, including Zephyr Teachout, laid out a series of procedural blocks Democrats could have thrown down. They didn't bite, perhaps worrying that doing so would have harmed their election prospects in 2020. Maybe they were right. Maybe they weren't. But here we are in 2021 with a Democratic trifecta and a right wing court that just let Texas outlaw abortion.
As I've written previously, Joe Manchin was dead-set against the massive voting reform bill, HR1, until Democratic Majority Leader Chuck Schumer (D-NY) scheduled a vote and Manchin wrote down what he actually wanted. We simply can't take Manchin or Sinema at their word when they say what they do or don't want in general terms. It is the exercise of power, and the process that leads up to that exercise, including drafting legislative language and voting on it, that determines what a politician's real positions are.
So while I was somewhat heartened by to see Sen. Tina Smith (D-MN) express support for expanding the court, it was disappointing to see her put off doing so until 2023, contingent on Democrats keeping the House and expanding their Senate majority. Here's what she had to say on Twitter:
The Texas ruling by the Supreme Court is a blatant attack on women's freedom. The court seems ready to toss 50 years of precedent and basically allows vigilantes to take away women’s constitutional rights. So many have rightly asked: What are we going to do about it? A thread:
First off, let’s be very clear about what‘s happening. This is the culmination of a 40 year effort by Republicans to radically remake the courts with the help of dark money and the Federalist Society. They’ve succeeded, and Roe is their white whale.
So we’re going to fight. But I want to be clear that there is not a magical lever of power we could pull but are avoiding. We can tweet and send out press releases stating our positions as much as we like, but that’s not a strategy.
The reality is that if a vote was brought up tomorrow to change or eliminate the filibuster or reform or add seats to the Supreme Court, it would fail. I wish it were different. We don’t have the numbers and that’s what we have to focus on changing.
Expanding our majorities in Congress will be hard. There’s a good chance we could lose one or both Houses in 2022. But remember that a strong majority of the public agrees with us on reproductive rights. It’s a voting issue and a winning one. So it’s our job to make the case.
And if we do that successfully, and we get a few more seats, we should use our power to eliminate the filibuster and expand the court.
Republicans stole two Supreme Court seats and as demonstrated by this decision, much of the current Court is dangerously unmoored from any reasonable principles of legal analysis.
Do I believe we can get there? Yes. It’s going to be tough. But if we focus on what we can and should do, we have a fighting chance.
I deeply appreciate Sen. Smith's work, but I want to point out a few dodges here that advocates often resent hearing from elected officials.
The phrase "magical lever of power" is, respectfully, sleight of hand. It's meant to discredit transformative demands from advocates instead of engaging with them seriously. The filibuster is not magic, either. Nor is the unelected Senate parliamentarian.
The Silver Horn the Founding Fathers left us, of course, is magical:
Further, Sen. Smith doesn't name the people who would refuse to vote for expanding the court. Right now, that number could include the 49 Democratic senators who are not cosponsoring the Judiciary Act of 2021 or similar legislation. Or perhaps it's just Sinema and Manchin. We simply won't know until more Democrats sponsor this legislation, more groups call for Democrats to do so, and until Sen. Schumer schedules a vote.
I'd add that several other elected officials are missing from these bills, including Democrats who ran for president in 2020 and expressed openness to expanding the court, among them Sen. Elizabeth Warren (D-MA) and now-Vice President Kamala Harris, who has a powerful role to play in over-ruling the parliamentarian on any votes related to the filibuster, as her predecessor Nelson Rockefeller did in 1975 when the filibuster went from a two-thirds majority to just 60 votes.
Where Do We Go from Here?
I wish elected Democrats were more eager to fight for the process changes we need to get the policies they campaigned on. After the failed vote on the bipartisan 1/6 commission—and conservative Democrats' failure to move on the filibuster in response—I wrote that politicians probably won't save us from a failing democracy. And at this point, Democrats are caught between the rhetoric they have rightfully directed at their base regarding threats to our democracy and civil rights, and the reality of actions they're actually willing to take in Washington.
Agitation, activism, unionization, and democracy reform litmus tests for Democratic candidates are all things advocates can do. But we only have 500 days left in this Congress. Nobody can predict the future. The Senate map is very slightly favorable toward Democrats this year, but the House is biased toward Republicans and will be contingent on redistricting. This could be the last chance in a generation or longer to prevent democratic backsliding in the United States, particularly at the Supreme Court.
The women of Texas are now on the front lines of that backsliding, which has been going on at least since the Reagan era and certainly since the stolen 2000 election.
Writing in 2005, when Samuel Alito was appointed to the court, replacing the more moderate Sandra Day O'Connor, historian Howard Zinn challenged us to look beyond the court itself.
The final check on power, as always, is the people.* Another bill by Rep. Ro Khanna (D-CA-17) introduced in the last Congress would impose term limits on future justices, but not current ones. It was co-sponsored by Rep. Don Beyer (D-Va-08) and then-Rep. Joe Kennedy (D-MA-04).