The recent rulings of the conservative-dominated Supreme Court are set to take center stage in the battle over the Senate majority, giving Democrats a better chance to keep control of the upper chamber despite President Biden’s slumping approval numbers.
This week’s decisions by the court rejecting Biden’s student loan forgiveness plan, invalidating university affirmative action policies and allowing small business owners to oppose giving services for same-sex marriages give Democrats an opportunity to play offense.
Democratic candidates can make a straightforward argument on the campaign trail that the court’s 6-3 conservative majority, which last year struck down Roe v. Wade and the constitutional right to an abortion, is the direct result of Republican control of the Senate.
No person played a greater role in shaping today’s court than Senate Republican Leader Mitch McConnell (R-Ky.), who held the seat of late conservative Justice Antonin Scalia vacant for more than a year in 2016 to prevent then-President Barack Obama from putting a third justice on the high court.
McConnell proved pivotal four years later when he expedited the confirmation of conservative Justice Amy Coney Barrett through the Senate in the weeks before the 2020 presidential election, flipping the seat long held by late liberal Justice Ruth Bader Ginsburg.
Those two seats filled by conservative Justice Neil Gorsuch and Barrett made the difference between what would have been a 5-4 Democratic majority on the court and today’s 6-3 conservative majority.
Those maneuvers are reaping huge legal victories for religious and fiscal conservatives on a range of hot-button issues related to abortion, debt forgiveness, racial justice and gay rights.
Democrats say the decisions will put the court itself in the spotlight in next year’s election and help mobilize their voters in Senate battleground states across the country.
“Democrats were already fired up because of Roe v. Wade,” said Democratic pollster Celinda Lake. “It will mobilize Democrats, particularly Democratic younger women who are already turning out and registering in record numbers.
“This is a pattern which just shows a Supreme Court that is taking away our freedoms and moving the country backward and Democrats are very, very strongly engaged and women are very strongly engaged by that narrative,” she said.
Democrats say each of the court’s controversial decisions will mobilize multiple key constituencies in Senate battlegrounds ranging from younger women and minorities to LGBTQ voters and people with student loan debts.
The court in Dobbs v. Jackson Women’s Health Organization last year overturned the right to an abortion.
This month, in Students for Fair Admissions v. Harvard, the six conservative justices struck down affirmative action policies at Harvard and the University of North Carolina at Chapel Hill.
In Biden v. Nebraska, the court in a decision released Friday rejected Biden’s $400 billion student debt forgiveness plan.
Also on Friday, the conservative majority ruled in 303 Creative LLC v. Elenis to uphold a businesswoman’s right to deny services to same-sex couples because of religious convictions.
“If you take this whole record, you have a [get out the vote] plan for the Democrats,” said Lake, who argued the court’s recent decision in Glacier Northwest v. International Brotherhood of Teamsters, which ruled a company could sue a union for striking if it hurts their business, would also mobilize union-affiliated voters.
The labor case was decided 8-1 in favor of a concrete company with liberal justice Ketanji Brown Jackson offering the only dissenting vote.
Steve Jarding, a Democratic strategist who previously served as an advisor to the Democratic Senatorial Campaign Committee, said the court’s recent decisions “are changing decades of precedent” impacting “millions of Americans.”
He said “if the Democrats use it right as an issue” they can move voters to support Senate Democrats in key races.
“This is the court that Republicans wanted, that Republicans gave America and now they’re dismantling the social fabric of the country,” he said. “The public doesn’t normally pay attention to the court but with these rulings this goes beyond the court. This is a court the Republicans packed.”
He noted the court’s decisions are not only dramatic but in some cases they reversed decades of established precedent, altering a national landscape that voters had become accustomed to over a half-century.
The court’s decision on affirmative action overturned a precedent set in 1978 in Regents of University of California v. Bakke. Last year’s Dobbs decision overturned the precedent Roe v. Wade established in 1973.
Jarding said voters who don’t like the court “fundamentally changing the fabric of America” can “express outrage about it at the ballot box.”
“I’ve never in my lifetime seen so many dramatic decisions come down in such a short period of time and that makes this a legitimate political concern,” he added.
Senate Republicans, however, are not shying away from the court’s decisions on affirmative action and student debt.
McConnell hailed both rulings as big wins. He praised the court for making “clear that colleges may not continue discriminating against bright and ambitious students based on the color of their skin” and derided Biden’s student debt forgiveness plan as “socialism.”
“The president of the United States cannot hijack twenty-year-old emergency powers to pad the pockets of his high-earning base and make suckers out of working families who choose not to take on student debt,” he said.
Senate Majority Leader Chuck Schumer (D-N.Y.) attacked the decisions, calling the ruling on affirmative action “a giant roadblock” on the march toward racial justice and the opinion on student debt relief “disappointing and cruel.”
Philip Letsou, a spokesman for the National Republican Senatorial Committee, said Democratic incumbents running in states that voted for former President Trump in 2016 and 2020 will have a tough time running against the court.
“If Joe Manchin, Jon Tester, and Sherrod Brown want to run on supporting Joe Biden’s illegal student loan bailout, racial discrimination in college admissions, and painful abortions up to the ninth month of pregnancy, we welcome their decision,” he said.
“Attacking Brett Kavanaugh backfired on Senate Democrats spectacularly in 2018, and it will backfire again if Democrats make attacking the Supreme Court their campaign pitch for 2024,” Letsou added, noting that incumbent Democratic Sens. Claire McCaskill (R-Mo.), Joe Donnelly (D-Ind.) and Bill Nelson (D-Fla.) lost their re-election bids after Senate Democrats went to war against Trump’s second nominee to the Supreme Court.
Whit Ayres, a prominent Republican pollster, said the court’s decision to overturn the right to an abortion will have the most impact on the 2024 election and questioned whether decisions on student debt relief and affirmative action will move the needle much in Senate battlegrounds.
“The way it would have an effect is through the abortion ruling,” he said of the court’s salience as a political issue next year. “This affirmative action ruling is fully consistent with majority public opinion and that’s not going to be an issue.
“It’s hard to make the Supreme Court itself an issue unless you’re talking about a presidential campaign with a new president who’s going to nominate justices. The way it becomes an issue is through the abortion ruling,” he said.
“In 2022, that really stimulated Democratic turnout down the ballot,” he said.
Ayres said the decision on student loan forgiveness could sway voters “in certain places” but asserted there are “as many arguments against providing that relief as there are for” it, especially among “people who had student loans and paid them off” and are “wondering where the fairness is.”