Trump’s Supreme Court legacy means Roe v Wade is just the beginning

Such is the emotional and religious resonance of the abortion issue that it is already having a toxic effect on America’s already polarised politics. President Joe Biden had no hesitation in condemning what he had heard on the news, repeating that a woman’s right to choose is “fundamental”.

Vice-President Kamala Harris has also exceeded herself in calling the Supreme Court’s draft decision on Roe v Wade 1973 a “direct assault on freedom.” A deeply political move, albeit taken by the judicial arm, Harris recognised it as such: “At its core, Roe recognizes the fundamental right to privacy. When the right to privacy is attacked, anyone in our country may face a future where the government can interfere in our decisions … It has never been more clear which party wants to expand our rights and wants to restrict them.”

Such powerful, if oblique, attacks on the court by the executive are the kind of thing for which Donald Trump was derided during his time in the White House — undermining respect for the highest court in the land even when its decisions are controversial. If its rulings were not at occasional odds with the executive or the legislature, or indeed public opinion, there would be no point in having a Supreme Court.

So the issue is political, and it is going to inflame an already tense atmosphere as the country heads for mid-term elections in November. Unlike in much of Europe, in America such “conscience” issues aren’t decided by free votes or regulated by ethical panels, but instead pitted right into the crucible of religiously and culturally charged struggles. For Mr Biden, the consequence is clearer: the end of Roe v Wade would raise the stakes for voters, leaving it up to citizens to “elect pro-choice officials”. That way, the Women’s Health Protection Act, which failed in the Senate in March, might be revived. But the Democrats may lose support later in the year amid wider political pressures.

Republicans and Trump supporters draw a parallel conclusion from the leak. Were it not for a succession of Republican presidents ensuring every fresh appointment was a conservative justice, with a narrow “constructionist” view of their remit, Roe v Wade would never have been overturned. For example, sharp congressional manoeuvrings prevented President Obama from appointing a more liberal justice as his time in the White House drew to a close in 2016. President Trump appointed no fewer than three likely “pro-life” justices in his four-year term, the most of any president since Ronald Reagan.

This is the long-term plan alluded to by the Democrat Senator Elizabeth Warren, who tore into the Republicans “plotting for decades" and "cultivating the Supreme Court justices so they could have a majority on the bench.”

As Roe v Wade demonstrated over a half-century span, rights upheld by judges can prove no more durable than those passed by Congress, subject to short electoral cycles and volatile public opinion. A president fortunate enough to be able to nominate Supreme Court justices and have them ratified by a supportive Congress can bequeath a legacy that will long outlive them. The presidents who appointed the justices on the Burger court who agreed the Roe v Wade ruling in 1973, from Eisenhower to Nixon, have all long gone, but their influence lived on in that landmark ruling. Similarly the choices made by President Trump are now making their presence felt in a deeply conservative direction. It signals to Trump supporters ahead of the 2024 election that there is plenty more where that came from.