The real issue, to hear Republicans tell it, isn’t that the Supreme Court could overturn Roe v. Wade, according to a copy of the draft opinion written by Justice Samuel Alito.
The real issue, they say, is that the draft opinion was leaked to the press.
“I think the story today is an effort by someone on the inside to discredit the institution of the Senate, which continues a pattern that we’ve observed over the last couple of years,” said Senate Minority Leader Mitch McConnell on Tuesday. “What’s unique about today is this is the first time we’ve had somebody on the inside try to attack the institution.”
“I hope whoever is responsible for the leaked draft opinion is fired, prosecuted, and has to serve real jail time,” said Texas Sen. Ted Cruz.
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Missouri Sen. Josh Hawley wrote an entire op-ed about the leak for Fox. “Justice Alito’s draft majority opinion is powerful, overturning Roe and returning the question of abortion to the people,” wrote the Republican senator. “The opinion is everything a constitutionalist could hope for. This leak looks like an effort to derail it, and delegitimize the Court in the process.”
Lost in that focus was this: The Supreme Court appears to be on the brink of undoing almost 50 years of precedent and, in the process, paving the way to making it illegal to get an abortion under most circumstances in a number of states.
So, why? As in: Why were Republicans so intent on making the leak the story rather than what the actual draft ruling would do.
Before I get there, let me say this: The leaking of a draft opinion is a serious matter. Chief Justice John Roberts called for an investigation into it — and rightly so. This is not the sort of thing that we can condone, as it politicizes the nation’s highest court and throws the judicial process into chaos.
Now, to the point: Republican elected officials know that the politics of overturning of Roe v. Wade are bad for them in the coming midterm elections.
That is true for two main reasons:
1) The previously lethargic Democratic base is angry and fired up about the possible Roe decision. In a midterm election in which winners and losers tend to be determined by the energy within the respective party bases, that’s not a good thing for Republicans.
2) Throwing out Roe is an electoral loser for the GOP. While Democratic voters are, as expected, adamantly opposed to such a move, so are the political independents who tend to compose the swing vote in a midterm election. In a January national poll, more than 7 in 10 independents (72%) said they did not want the Supreme Court to overturn the Roe decision.
And then there’s this: The people who will be most energized to vote for Republicans because of the expected decision on Roe were already totally ready to vote out Democrats in the House and Senate this fall. Poll after poll showed that the Republican base was absolutely raring to go. A recent Washington Post/ABC News survey found that Republicans and Republican-leaning independents were 10 points more likely than Democrats to say they were “certain” to vote in November.
By trying to make the leak the story, Republicans are hoping to play into an existing narrative that they know their base loves: Liberals are using the media to undermine the rule of law and to pressure the court to change its mind on Roe.
(Sidebar: You’ll note the irony when Hawley insists in his op-ed that the Supreme Court should issue the Roe ruling immediately.)
To be clear: The leak is an issue here. It is not, despite Republicans’ best efforts to convince you otherwise, the issue.