Supreme Court follows election returns

Frank CagleFrank Talk

Few people remember Mr. Dooley, though he was the most popular political pundit at the turn of the 20th Century. He was the fictional Irish Chicago bartender voiced by newspaper columnist Finley Peter Dunne. His observations on politics were collected into books that became bestsellers and President Teddy Roosevelt read him at his cabinet meetings.


(Dooley offered a hilarious review of Roosevelt’s book about Cuba and the Rough Riders, suggesting the self-centered Roosevelt rename the book “Alone in Cuba.”)

Frank Cagle

While Mr. Dooley is long forgotten, some of his pithy observations live on. You may have heard some of them delivered without attribution by various political figures. Like Tip O’Neill saying “politics ain’t bean bag.” Then there is the more famous observation that shows up in “Inherit the Wind” that newspapers should “comfort the afflicted and afflict the comfortable.”

And my personal fave: “Trust everybody, but cut the cards.” Or, as Ronald Reagan would say “Trust, but verify.”

In 1900, when the Republicans won a huge victory, the Supreme Court used some tortured arguments to decree that the Spanish American War victors could make people in the newly-acquired territories pay taxes. Mr. Dooley observed that “the Supreme Court follows the election returns.”

It was quoted again when the Supreme Court began ruling that Franklin Roosevelt’s New Deal programs were unconstitutional. Since the Democrats had a huge majority in Congress Roosevelt began talking about “packing the court” by naming additional justices. He didn’t do it, but suddenly the Supreme Court began to see its way clear to allow the New Deal to continue.

Both sides seem to think that the addition of Judge Amy Barrett to the court to create a six-three conservative majority will overturn Roe v Wade. The Republicans have held out the promise of such an action for decades in order to keep social conservatives in line. But you may have noticed that it hasn’t happened in 47 years.

Is there doubt the suspected outcome will not come to pass? There are reasons to think so.

The vaunted independent judiciary does not live in isolation and judges are very conscious of which way the wind blows. Remember the strained reasoning and rewriting Republican-appointed Chief Justice John Roberts did in order to save the Affordable Care Act? Roberts also took umbrage at President Trump’s description of a jurist as “an Obama judge” saying that we do not have Obama judges or Trump judges, we just have judges.

The Pew Research Center polls show that 70 percent of the American people (including 52 percent of Republicans) do not believe abortions should be outlawed. Restricted, yes. But outlawed? No.

The conservative Supreme Court will hear cases around the margins but will a straight-ahead decision that overturns a decision made 47 years ago happen? The justices are appointed for life. The prospect of forever living in infamy for a decision that flies in the face of settled law and over the objections of two-thirds of the American people may be too dire to contemplate. Roberts twisted himself in knots to save Obamacare. Will he really preside over a decision that looks back at 47 years of abortions and say “never mind?”

As with the court during Roosevelt’s era, this court has to be conscious of the Democrats talking about “packing the court.” Will the justices sit by while the Congress wreaks havoc with the highest court in the land? Or will they protect the institution they revere? Does Roberts want to preside over a squabbling 15-member mini-legislature?

Joe Biden won’t say whether he favors packing the court, but he doesn’t have to. All he has to do is leave the possibility hanging out there. Polls say he will win the election, an iffy proposition but possible. If he wins big, the Republicans could lose the Senate in a Blue Wave. The Democrats could then grant statehood to Puerto Rico and Washington, D.C., and thus add four new Democratic senators. All it takes is an act of Congress to authorize it. (As it did with Alaska and Hawaii.)

Majority Leader Mitch McConnell, in his haste to confirm Barrett, looks like a man who expects an election disaster.

I think there is reason to believe Mr. Dooley’s dictum that the Supreme Court will follow the election returns.

Frank Cagle is a veteran newspaper editor and columnist.

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