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Supreme Ironies

Voters Decided Who Won the Midterms. So Did the Supreme Court.

It’s an ironic twist in a year when Americans rallied to democracy’s defense.

Drew Angerer/Getty Images

Unless something weird happens with the remaining contests, President Joe Biden appears to have done better in his first midterms than any of his recent predecessors. Republicans lost 41 House seats and gained two Senate seats in 2018 under Donald Trump, while Democrats lost 63 House seats and nine Senate seats in 2010 under Barack Obama. Only in 2002 has a party—George W. Bush’s Republicans in the aftermath of 9/11—actually gained House and Senate seats during a president’s first midterms in this century.

As it stands, Democrats have a fighting chance of keeping the Senate and a slightly more modest chance to keep the House—a far cry from claims that a “red tsunami” would swamp them on election night. With votes still being counted, it is premature to draw definitive conclusions about this year’s midterm elections. But the results so far suggest that the Supreme Court’s recent rulings had a major effect on the outcome.

The most obvious example is on abortion rights. There were plenty of signs in both preelection public polling and voter registration data that the court’s ruling in Dobbs v. Jackson Women’s Health Organization may have provoked a sizable electoral backlash among voters. Tuesday night’s results seem to have borne that out: Voters in California, Michigan, and Vermont each opted to enshrine abortion rights in their state constitutions, while voters in Kentucky rejected a constitutional amendment that would have affirmatively declared that the document contains no right to an abortion.

Post-Roe anger may have helped decide other races in Democrats’ favor as well. In Pennsylvania, an NBC exit poll found that Democratic victor John Fetterman won 78 percent of voters who cited abortion as their most important issue. Another exit survey found that abortion outranked inflation as the top reason that brought Pennsylvanians to the polls. The ballot initiative question on abortion rights in Michigan may have helped not only propel voters to reelect the state’s Democratic governor, secretary of state, and attorney general but also give the party full control of the Michigan legislature for the first time since 1983. That gives Michigan Democrats a chance to repeal the state’s pre-Roe abortion ban that went back into effect after the Dobbs decision this summer.

I noted in TNR’s September print issue that overturning Roe v. Wade was likely to have a profound effect in states like Michigan, Pennsylvania, and Wisconsin. The Supreme Court had three options when it took up Dobbs last term: There was almost no chance that a court with a six-justice conservative majority would actually affirm Roe, but it theoretically could have done so. The court also could have upheld Mississippi’s 15-week ban without overturning Roe itself, a path initially offered by the state’s lawyers but abandoned after Ruth Bader Ginsburg’s death in 2020 changed the court’s composition. Finally, it could have—and did—go all in and use the opportunity to destroy Roe.

Chief Justice John Roberts argued in a solo concurring opinion in Dobbs that the court should have moved more slowly by upholding the Mississippi law under existing abortion precedents while leaving the door open to revisiting them in the next case. Justice Samuel Alito and the other four conservatives opted instead to achieve their goal at the earliest available opportunity. Had the court chosen Roberts’s path, it would have delivered a blow to abortion rights but not a fatal one. The result would have likely inspired less backlash among Democratic and independent voters in this election.

It’s unclear how much of an electoral backlash the justices anticipated. They insist that they do not decide cases based on external political considerations. This trade-off is unlikely to inspire much anger or regret on the right—for now. Anti-abortion conservatives might reasonably conclude that overturning Roe after nearly 50 years of effort is worth losing one midterm election cycle. That sentiment might shift, however, if another vacancy arises on the Supreme Court in the next two years and there is a Democratic president and Senate to fill it. Every president since Jimmy Carter has filled multiple vacancies during their term, and all but one of them filled two or more seats in their first term in office.

Even if the Supreme Court’s timing frustrates some Republicans, they can take solace in the conservative justices’ more direct interventions in the American electoral system. Roberts and his conservative colleagues made it impossible for federal courts to hear partisan-gerrymandering claims in the 2019 decision in Rucho v. Common Cause, paving the way to imbalanced maps in Wisconsin and other states. And the court’s shadow-docket orders in two state redistricting battles almost certainly helped the GOP secure a few seats that otherwise might not have gone its way.

The latter cases involved Voting Rights Act challenges to congressional maps in Alabama and Louisiana. The law’s Section 2 is often used to challenge alleged instances of racial gerrymandering. In both states, federal judges found that the congressional maps violated the VRA by diluting Black voting power. The lower courts ordered the respective states to redraw their congressional maps before the election. Both states then asked the Supreme Court to intervene via the high court’s shadow docket, where it handles emergency motions.

In the Alabama case, the justices treated the request as a petition for review in February and agreed to hear it during this fall’s term, guaranteeing that the original maps would be used in the 2022 midterms. The court does not typically explain itself when issuing shadow-docket rulings, but Justices Brett Kavanaugh and Samuel Alito wrote separately to say that they agreed with the outcome because of the “Purcell principle,” a doctrine that counsels against last-minute changes to election laws. In June, the conservative justices also allowed Louisiana’s challenged map to take effect while the court weighs in on the VRA’s application to racial gerrymandering in the Alabama case.

Justice Elena Kagan, joined by then-Justice Stephen Breyer and Justice Sonia Sotomayor, protested the conservatives’ maneuver in a dissent in the Alabama case. “The District Court here did everything right under the law existing today,” she wrote. “Staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.” Indeed, had the high court not intervened, the lower courts would have likely forced Alabama and Louisiana each to include an additional majority-Black district. Instead, the court’s conservatives will likely further narrow Section 2’s power and further diminish the Voting Rights Act’s protections.

Beyond the legal consequences, there are also immediate electoral ones. The court’s intervention in those two states effectively guaranteed that Republicans would win two House seats despite lower-court rulings that found evidence of racial gerrymandering. It’s not yet possible to tell how the remaining House races will go, but if the GOP recaptures the House by one or two seats, the Supreme Court will have effectively decided control of a chamber of Congress. That would be an ironic twist, to say the least, in a year when Americans apparently rallied to democracy’s defense.