Could Roe Change the Subject This November?

A good rule of thumb is that if a midterm election is about one party, that party will almost always pay the price in the House, and usually the Senate as well. Thus no party wants to find itself in the spot where the Democrats find themselves—with their standard-bearer President Biden posting only a 41 percent job-approval rating in the RealClearPolitics average of major national polls and in the most recent Gallup Poll, both for the month of April and for his entire fifth quarter in office. But as a Gallup analysis out last week noted, only one of the 10 elected presidents going back to Dwight Eisenhower had any improvement in job approval between their fifth and seventh quarter in office—the quarter when the midterm election is held.

The lone exception was the only elected president to have a lower job-approval rating at this point than Biden: Donald Trump, who had a 39 percent approval rating in the fifth quarter. Trump’s approval rating during the quarter of the midterm election was the same as Biden’s is today, 41 percent. It should be recalled that Trump’s GOP lost 40 House seats and its majority in that chamber. The GOP did gain two net seats in the Senate by virtue of having a great map that year: Democrats were defending 10 seats in that chamber in states that Trump had carried two years earlier, while only one Republican was up in a state where Hillary Clinton had prevailed. The House is always the truer barometer of the national mood.

Suffice it to say, Democrats should not want this election to be about Biden, or for that matter, about how voters perceive the Democratic Congress's performance. On a scale of completely dysfunctional to ticking like a precision Swiss watch, the last 14 months has been far closer to the former than the latter. Whether Biden and Democrats under-delivered on what they had promised or under-promised what they could deliver, both led to bad outcomes for them.

Democrats need the subject of this election to change, to shift away from them and toward Republicans—a tall order indeed when the GOP is out of power and not held responsible for much that does or does not happen. Keeping in mind that election years are notoriously unproductive in terms of legislation, if something happens to shift the focus of this election, it is more likely to come from the opposite side of First Street than where the Senate and House chambers are situated: that is, the Supreme Court.

Referencing then-Defense Secretary Donald Rumsfeld’s matrix 20 years ago about future developments, my colleague Amy Walter has noted “known knowns,” “known unknowns,” and “unknown unknowns.” The one major known unknown between now and the midterm is how the Court will rule in the pending case of Dobbs v. Jackson Women’s Health Organization—whether it affirms or reverses Roe v. Wade, or something in between.

The Court is expected in the next few days to begin handing down opinions on cases, usually on either Tuesday or Wednesday mornings. Given the Court’s history of saving announcements on the most important and contentious cases for last, closer to the get-out-of-town time for the justices, the smart bet for a Roe judgment day would be in the latter half of June.

A reversal of Roe would basically punt the entire abortion issue to the states to fight over, just as they did on partisan (though not racial) gerrymandering. But given how many states are already safely ensconced in the back pockets of one party or the other, a substantial share of the electorate lives in states where little change in state abortion law is likely. States that preponderantly favor abortion rights are unlikely to enact antiabortion legislation, and vice versa. Potential change is more likely in states on the bubble, where the partisan and state legislative balance is either evenly balanced or in transition.

The states worth watching are pretty much the swing states that we see on the presidential, senatorial, and gubernatorial levels. One could do a lot worse than focus on the six states that political sage Doug Sosnik identifies as critical for 2022 and, arguably, 2024 as well: Arizona, Georgia, Michigan, Wisconsin, Pennsylvania, and Nevada.

In terms of individual minds being changed, it is unlikely that a reversal or near reversal of Roe would have much more than a ripple. Those most likely to be outraged by a reversal are mostly either already in the Democratic camp or find themselves cross-pressured on many issues, thus hardly likely to be single-issue voters. Those who would greet such a decision in a jubilant fashion are already on the GOP side, making motivation the only game in town, not persuasion.

If any issue or event on the radar screen could shift the focus of this election, it would be Roe, but the prospect of it changing which way the river is flowing is pretty unlikely.