When Justice Samuel Alito’s draft opinion — which, if finalized, would end Roe v. Wade’s 49-year-long precedent of guaranteeing the legal right to an abortion under federal law — was leaked, the left directed much of its ire at the Republican-appointed justices on the Supreme Court. Indeed, it is these conservative justices, nominated by a Republican president and confirmed by a Republican-led Senate, that, ultimately, are likely to end Roe. The decision would overturn what has been described as a super precedent is a grave violation of the constitutional protection to privacy and is purely done for political purposes.
While it is true that it’s Republicans and conservatives who have, since Roe’s inception, worked tirelessly to achieve its reversal, Democrats and liberals should understand how they too helped make it possible.
To do so, one could first look to the Obama era, when an aging Ruth Bader Ginsburg refused to retire, preventing President Obama from nominating a younger liberal judge to the court. Many on the left defended Ginsburg’s choice, arguing that she shouldn’t be forced into retirement. Tragically, her decision proved costly, as Ginsburg died just before the election of President Biden and was replaced by a very conservative judge, Amy Coney Barrett, who drastically changed the makeup of the Court.
To many on the left, the idea of placing blame on Ginsburg for Roe’s potential reversal is horrific and unjust. A pioneer for women’s rights and reproductive freedom, Ginsburg undeniably played a massive role in the fight for progressive causes. But Ginsburg had to have known the risk she was taking by refusing to step down. Had she made the unselfish decision to retire during the Obama administration, the draft opinion by Alito would have likely never happened. The ideological makeup of the Court would have become 5-4 in favor of conservatives, with Chief Justice John Roberts, who has expressed interest in at least partly maintaining Roe, being the deciding vote.
Even so, there is a much more significant, and underappreciated, aspect that has made the reversal of Roe likely. The more than 1.5 million Jill Stein voters, in conjunction with voters on the left who stayed home in protest of the 2016 election, worked to undermine the Clinton campaign and resulted in the election of Donald Trump, who went on to appoint three conservative, anti-Roe justices.
The 2016 election was infamously close when viewed through the lens of the Electoral College, with fewer than 80,000 votes in battleground states being the determinative factor. In Michigan, Trump won the state by just over 10,000 votes. Jill Stein received over 50,000. Trump won Wisconsin by about 23,000 votes. Jill Stein notched over 30,000. In Pennsylvania, Trump won by about 44,000 votes. Jill Stein received nearly 50,000. These three states alone would have been enough to swing the election. This makes no mention of the large number of voters who stayed home, not because of a lack of access to the polls or disinterest in politics, but as a way of protesting the establishment or Clinton herself.
Stein voters, who knew her campaign was hapless and understood that a vote for Stein could only help a man who campaigned on limiting reproductive freedom, decided to do so anyway.
Clinton, right as she often is in her prognosis, warned what a Trump presidency might do to the courts, only for many on the left — and in the media — to ignore her.
After Sen. Bernie Sanders’s, D-Vt., defeat in the 2016 Democratic primary, many in the progressive world argued that Clinton did not deserve their vote. Some of these same people likely argued that the two parties are the same or that Hillary was, for all intents and purposes, a Republican. Trump’s presidency proved the obvious: that these claims were outlandish.
Putting aside these overblown complaints about Clinton, the fact still remains: A Clinton presidency would have resulted in a liberal-controlled Supreme Court.
There are seemingly infinite lessons to be learned from the 2016 loss, but some of these lessons shine brightly. First, as Clinton warned, the left simply has not taken the issue of the Supreme Court seriously enough. Conservatives continue to use it more successfully as a wedge issue in elections and focus more of their messaging on it. They have been able to generate so much moral outrage on issues like abortion that they are able to maintain single-issue voters. Second, if liberals want to succeed politically, then they ought to rid themselves of the false mentality that both parties are the same, that not voting for Democrats because they weren’t their number-one choice in the primary is at all beneficial and that realistic incrementalism is somehow irrational.
On liberal causes such as women’s rights and reproductive freedom, the unfortunate reality is that Democrats will have to fight on against the best efforts of Republicans. Because of that, there is no margin for error for those who care about causes like reproductive freedom. Progressives need to focus on electing Democrats in 2022 — even if they may not be their perfectly ideal candidate — and they must avoid self-inflicted wounds that may aid a Republican takeover of Congress.
Devon Hesano is an Opinion Columnist and can be reached at dehesano@umich.edu.