Editor’s Note: David Mark is a political journalist, author and public speaker. He is the author of “Going Dirty: The Art of Negative Campaigning” and co-author of “Dog Whistles, Walk-Backs, and Washington Handshakes: Decoding the Jargon Slang and Bluster of American Political Speech.” The opinions expressed in this commentary are his own. Read more opinion at CNN.
In the runup to the 2024 elections, Democrats plan to put the Supreme Court on trial. President Joe Biden and Democratic allies already have made the high court’s 6-3 conservative majority a political punching bag, a strategy spurred on by the justices’ landmark decision last year overturning Roe v. Wade and its constitutional guarantee of access to abortion.
But that approach may have its limits, as a pair of high-profile, end-of-term Supreme Court opinions shows. The high court last Thursday ruled that colleges and universities can no longer take race into consideration as a specific basis for granting admission, and on Friday it struck down Biden’s student loan forgiveness program.
Both cases were decided 6-3, with appointees of Republican presidents in the majority and Democrat-chosen justices in the minority. And both outraged Democratic lawmakers.
“This is not a normal court,” Biden said on Thursday in response to a question a CNN reporter shouted at him shortly after the Supreme Court ruling was issued. Democratic Sen. Chris Murphy of Connecticut put a finer point on it on Friday. “This Supreme Court: Six right wing politicians, masquerading as judges, gleefully imposing their politics on the country by fiat,” he tweeted.
The problem for Democrats, though, is that the court’s views on the higher education issues at hand are likely more in line with voters than their own. Though their political battle plan to demonize the Supreme Court has until now been largely successful, Democrats are poised to make a major miscalculation if they assume this year’s decisions will push more people against the court and therefore further into Democratic arms.
It’s understandable why Democrats think they have an opening. On the eve of the Roe reversal just over one year ago (but after a leak to the press meant that voters already knew its fate), confidence in the court “reached a new low in Gallup’s nearly 50-year trend,” the polling outlet wrote. “Twenty-five percent of U.S. adults say they have ‘a great deal’ or ‘quite a lot’ of confidence in the U.S. Supreme Court, down from 36% a year ago and five percentage points lower than the previous low recorded in 2014.”
The most recent installment of the General Social Survey also found confidence in the Supreme Court in 2022 had sunk to its lowest point in at least 50 years, with just 18% of Americans saying they have a great deal of confidence in the court.
But Democrats shouldn’t take that as carte blanche to beat up on any decision the Supreme Court makes that they don’t like. Their support of affirmative action and student loan forgiveness are a case in point.
Consider that in the nation’s preeminent blue bastion of California, Biden romped to victory against Trump. Yet on the same ballot, voters rejected 57%-43% a measure repealing California’s 1996 ban on affirmative action. Biden routed Trump in Washington state as well, but a year earlier voters rejected a ballot measure to reverse the state’s 1998 ban on considering applicants’ race in admissions.
Years-long polling shows views on affirmative action are mixed, but that support for the policy declines as questions become more specific. Just Sunday, a snap ABC News/Ipsos poll after the high court struck down affirmative action found that 52% of Americans approved of the decision, while only 32% disapproved (16% didn’t know).
The Biden student loan proposal has found more support in polling than affirmative action generally does, yet it still doesn’t garner a majority. And its support resides much more with young people than older Americans – and the latter vote at a much higher rate.
On these two issues, the GOP also benefits from having sound-bite-ready rebuttals to liberal criticism – easily digestible and familiar lines that boil down complex public policy issues. In the conservative view, justices finally put an end to the “reverse discrimination” of affirmative action, a characterization going back to the 1970s.
Conservative support for the Supreme Court’s student debt ruling, meanwhile, was neatly encapsulated by the phrase, “You take out a loan, you pay it back,” which Sen. Tim Scott of South Carolina, a Republican presidential candidate, tweeted on Friday. His refrain is more likely to stick in voters’ minds than Democrats’ complicated formulations about the skyrocketing costs of college education and how student loan relief fits into potential solutions.
This isn’t to say that Supreme Court rulings can’t be fertile ground for Democratic political assaults in the Biden era. But it is to say that the party has to pick its spots, and that blanket condemnations that the court rules “by fiat” or isn’t “normal” could backfire.
Where the Democrats can more confidently harness Supreme Court discontent is on the issue of reproductive freedom. The opinion in Dobbs v. Jackson overturning Roe elicited almost immediate political support for the Democrats’ position last year. Moreover, political professionals widely credited the Dobbs decision with prodding Democratic voters, angry at the court’s ruling, to turn out to prevent what had been expected to be a red wave during the 2022 midterm elections.
Another test of the political winds on Democratic campaign plans over abortion comes this summer through an effort to enshrine abortion rights in Ohio’s constitution. If deemed to have enough valid signatures, the deadline for which was Wednesday, the proposal would go before Ohio voters in November. But anti-abortion forces are holding a special election in early August to raise the threshold for passing an amendment to the state constitution from a simple majority to 60% in a clear effort to stop the amendment’s passage.
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In Wisconsin and other battleground states, Democrats are already making abortion a front-and-center issue in US Senate campaigns even though Republicans have yet to pick candidates in some places. There’s reason to think this could be effective. In April, Democrat-backed candidate Janet Protasiewicz won a Wisconsin state Supreme Court seat by leaning into her support for abortion in campaign ads.
The Supreme Court’s abortion ruling will undoubtedly continue to be a tool in the Democratic Party’s political arsenal. But with the high court’s term now over and the 2024 election season on the horizon, Democrats find themselves in the position of having their attacks on the conservative majority at least somewhat neutralized. That’s a political blow for Democrats, if not a fatal one.