Capitol Hill Reacts to the Leaked SCOTUS Draft

Amid long-shot calls to nuke the filibuster and codify Roe, Democrats focus on this year’s midterms.

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Good afternoon. We’ll have one extra edition of Uphill for you this week, coming tomorrow. The story we were going to publish today got pushed back because of, well … events.

Leaked SCOTUS Opinion Shakes Capitol Hill

According to a leaked draft majority opinion, the Supreme Court may strike down Roe v. Wade and Planned Parenthood v. Casey, two landmark cases that established a constitutional right to abortion. The news, published in a story by Politico Monday night, sent shockwaves around Capitol Hill and thrust abortion laws back into public eye. The high court is expected to hand down the opinion later this summer, but the draft opinion does not represent a final decision.

Democrats on Tuesday pledged to hold a vote on legislation codifying abortion rights and renewed calls for lowering the threshold to pass such legislation in the Senate. But neither course of action is likely: An abortion rights bill failed earlier this year in the Senate without enough support to pass even if the rules were changed, and key moderate Democrats reaffirmed their opposition to changing the Senate rules despite the draft opinion.

Those political realities left Democrats pointing to November’s upcoming elections as their primary recourse if Roe is overturned.

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  1. Avatar photo
    Occam's Razr

    I need your help understsanding the calls to nuke the filibuster and push some Roe law through Congress. Surely all the D's know that they're going to lose the House and possibly the Senate in November. So if they nuke the filibuster now, the new Republican majorities in January 2023 will be able to do *way* more R stuff than they could if the filibuster was still in place, including repealing whatever Roe law the D's passed. Can you help me understand the D thinking?

    I have two thoughts. First, they view it as a moral issue and it is one of such importance and severity that it justifies these extreme steps. I think that is some flawed reasoning, but I can at least have a little sympathy for it. Second. the D's know that if they nuke the filibuster and pass Roe, then they can campaign for the midterms with some pitch like "You really need to vote for us because otherwise the R's will do all sorts of horrible things because there's no filibuster." Anyways, quite keen to learn from the wisdom of the crowds here.

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  2. Avatar photo
    William Miller

    Who is this "Marshall"? Isn't that Milhouse's evil twin from the Simpsons? (Or possibly a couple of supreme court justices or a Nobel prize winning diplomat and general).

    I believe the Marshal of the Supreme Court is Colonel Gail A. Curley.

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  3. Avatar photo
    JohnM.

    Great reporting. Thank you. From what I read, it seems like Kyrsten Sinema and Mitt Romney are two of the most pragmatic senators we have today.

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  4. Avatar photo
    Ben Connelly

    Buried at the end is a link about the UFOs!

    On a more serious note, I’m deeply troubled by the breach of the integrity of the court that this leak represents. SCOTUS was the last remaining institution with its integrity and this leak is worse than any decision the justices could make.

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  5. Avatar photo
    PJ

    Mitch saying it is “an attack on the independence of the Supreme Court” is rather special. Sorry, after the Merrick Garland debacle he has no integrity to make such a comment.

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    1. Avatar photo
      David Burke

      Bingo…

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  6. Avatar photo
    Matt Price

    "We have to turn this into an issue which is built into every single campaign in the United States in 2022"

    I feel like this doesn't have the results Markey thinks it will. The American public is not on board with either of the maximalist positions in the abortion debate. Making the Democratic party explicitly even more the party of abortion than it already is, is not a winning issue for them. An "anywhere, any time, for any reason" approach to abortion will continue to lose them both minority voters (who on average are more socially conservative than white voters) and working-class voters (ditto, more socially conservative than college-educated voters).

    Tragically though, if the laws that've been coming out of more conservative states are any indication, the pro-life side is going to go off the deep end as well - banning abortion at any time for any reason, endangering the lives of women with ectopic pregnancies (as a Missouri bill almost did) among others.

    It's dysfunction all the way down. :/

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    1. Avatar photo
      Dusty

      It's not a universal example as it's just Texas, but some of the best polling I've seen on the issue comes from the University of Houston polling after the passage of SB8 (https://uh.edu/hobby/txtrends/txtrends2021_report1.pdf). Again, this is just Texas so not representative of the U.S., but I like at how specific it gets in its questions.

      What it found is that the Texas law is overwhelming unpopular (69-31), BUT, this is largely due to the "no-exception" nature of the Texas law. When you just make an exception for rape and life of the mother, then all of a sudden a 6-week ban gets majority SUPPORT at 54-46.

      At 12 weeks, a ban that allows an exception for rape and life of the mother is supported 62-28. At 15 weeks, which is where Dobbs is, support for a ban that allows an exception for rape and life of the mother is at 70%.

      In seeing the Texas Latino vote turn more towards the GOP, the fact that Latinas are generally more pro-life is cited quite often in the media pieces about it. But, the poll backs that up as well, as whites and Latinos are basically identical in their numbers, while Blacks are a little more pro-choice.

      There is virtually zero difference between men and women on the issue.

      All of this to say, yeah, I think pro-choicers are really overestimating how popular their position is. Again, it's just Texas, but other polls that really dug into the specifics of the issue found similar levels of support (at least around the 12-15 week area, the level of 6-week support in Texas was surprising). There's definitely a danger (and a likelihood) that the GOP will move way too far, way too quick, which I think will be a political error. If they fought for 12 weeks/1st trimester they would be solidly in the majority on the issue and make substantial, monumental progress in moving the issue towards more of a pro-life position.

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      1. Avatar photo
        Matt Price

        Yep. Similarly to some of the other culture war issues (e.g. medical transition for minors), we seem locked into this all-or-nothing maximalism on both sides, whereas if you look at e.g. European countries, you see generally much more nuanced policies that tend to actually represent an overall societal consensus.

        Like, we can't we just... make laws that the vast majority of people support? Please? Instead of demanding third trimester no-excuse abortion on the one side and banning all abortions with zero exceptions on the other side?

        Except free speech. Europe sucks on free speech, generally speaking.

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      2. CrowdA

        My question is, if the choice becomes an all-or-nothing situation, which will more of these people choose? I tend to fall in the 1st trimester camp, but if I have to choose between what is essentially a total abortion ban vs. the Women’s Health Protection Plan, I will choose the Dem plan.

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        1. Avatar photo
          Dusty

          My point exactly. Many Republicans would rather launch a half court shot than finish a slam dunk. And that’s stupid politics.

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  7. Avatar photo
    Bill Dyer (aka Beldar)

    You know what SHOULD be passed on a bipartisan basis?

    Legislation guaranteeing the confidentiality of internal discussions within federal courts; clearly criminalizing the misconduct of those who abuse their positions of trust to destroy that confidentiality; and authorizing the federal courts to enlist, or make referrals to, the DoJ for such investigations and/or prosecutions.

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  8. Harry Preston

    Haven't Republicans figured out yet that the Democrats will do anything to win.

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    1. KIttye

      And Republicans won’t? I’m afraid that both parties are in the win at any costs camp. I am so sick of extremes on both sides and don’t know how we can turn it around. I do agree that doing away with the filibuster is a bad idea. It is the only way a minority party can have influence in the Senate.

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  9. Mercuryll

    This feels big. Real big. Both the decision (presuming it doesn't change significantly) and how we all just found out about it.

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  10. Avatar photo
    Ohio Gas Hog

    Just my opinion......If Markey gets his wish to “'fight hard' to pass abortion rights legislation" and “We have to turn this into an issue which is built into every single campaign in the United States in 2022,” ....they will lose bigger and bigger in middle America and so called purple states will turn bright red!

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