Historically, voter turnout for midterm elections is a big drop-off from presidential years. Usually, the more motivated voters are those from the party not occupying The White House. Modern midterms have seen an average of 30 seats in the House and Senate swing to the opposition, and all the Republicans need is a handful of Congressional seats and one Senator to put Kevin McCarthy and Mitch McConnell in control of the House and Senate respectively.
No doubt that explains this week’s opposition of both those individuals to any congressional, 9/11-style, inquiry into the events of January 6. The inevitable drip, drip of revelations that would result could bring nothing but harm to the GOP. And the release of any final report would coincide with the beginning of the mid-term campaign season.
There remains, however, another midterm intangible that cannot be avoided by either party. Two cases will be heard this fall by the Supreme Court – which has been reshaped by three, Trump-nominated Justices. Rulings will come on the two most hotly contested issues in American politics – abortion and gun rights.
A brief primer: The abortion case, Dobbs v. Jackson Women’s Health Organization, seeks to overturn a fifth-circuit court block of a Mississippi state law enacted in 20-18, that banned abortions after 15 weeks. The Roe vs. Wade precedent protects abortion rights at the point of viability or a gestational age of about 23/4 week for a fetus. The Mississippi case would reduce that timeline by about two months.
And by the way, not to be outdone, this week Texas Governor Greg Abbott signed a law that would effectively ban abortion after just six weeks!
Take a look at this map: It shows the result of an NYTimes analysis as to where abortion rights would be restricted if Roe were overturned.
Then there is the gun case. Here the precedent at issue is Justice Scalia’s 2008 opinion in D.C. vs Heller which interpreted the Second Amendment to mean that citizens have the right to gun ownership at home.
Lower courts have been citing part of the decision that says the right “Is not unlimited” – to allow for some regulations.
Now the court will rule on a New York law being challenged in the case: New York State Rifle & Pistol Association v. Corlett. It requires a resident to show a demonstrable need to be licensed to carry a concealed handgun outside the home. In other words, the court is being asked to say concealed carry – is also part of the 2nd Amendment.
The Supreme Court takes the summer off. These two cases will be argued in the fall and decisions will come in the spring or early summer of 2022.
Should the court adopt conservative positions, that might remind a Republican base of the importance of White House control and spur a GOP turnout to retake the house and Senate.
But if you’re gaming this out, there’s another consideration: Conservative rulings on abortion and guns might convince the President and Democrats to shed any reluctance they’ve had about expanding the size of the Supreme Court to counter the current ideological imbalance, which will otherwise likely continue beyond the Biden years.
The President created a commission to study potential changes to the court in April and that commission met for the first time just this week. They are supposed to deliver a report to the President in six months – just about when the abortion and gun cases will be argued.
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Michael Smerconish
Using the perfect blend of analysis and humor, Michael Smerconish delivers engaging, thought-provoking, and balanced dialogue on today’s political arena and the long-term implications of the polarization in politics. In addition to his acclaimed work as nationally syndicated Sirius XM Radio talk show host, newspaper columnist, and New York Times best-selling author, Michael Smerconish hosts CNN’s Smerconish, which airs live on Saturday at 9:00 am ET.
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