photo by: Creators Syndicate

Keith Raffel

Since the three Donald Trump appointees took their seats, the U.S. Supreme Court has waved its magic wand and come up with pro-Trump rulings in two high-profile cases. Whether or not the intent of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett in those decisions was to help Trump win another term, their votes in a third case may tilt next month’s election to Kamala Harris.

In August 2023, a federal grand jury indicted Trump for conspiracy that involved “discounting legitimate votes and subverting the election results” of the 2020 presidential contest. Eleven months later, Trump’s three appointees provided necessary votes for a Supreme Court decision that Trump “may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts.”

Although Trump called the holding “A BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY,” nowhere in the Constitution is such immunity granted. Instead, as Justice Sonia Sotomayor points out in her dissent, the court’s majority “invents immunity through brute force.” She notes that as far back as 1788, Alexander Hamilton declared the president of the new republic “would be amenable to personal punishment and disgrace” in contrast to the British king who was “sacred and inviolable.”

In Trump v. Anderson, the court made another constitutional ruling based on invention rather than the text of the Constitution. Under the 14th Amendment, an individual who had taken an oath to support the Constitution as an officer of the United States and had afterwards “engaged in insurrection or rebellion” against the Constitution was disqualified from office. The Colorado Supreme Court found Trump had done just that and provisionally ordered him off the state ballot in this year’s presidential contest. In a ruling issued in March of this year, the U.S. Supreme Court waved its wand, and, poof, there appeared a new rule, saying Congress had to pass a law before the amendment’s disqualification provision could take effect. Trump kept his place on the Colorado ballot and on the ballot of other states that may have followed Colorado’s lead.

And yet, in the most momentous case since the three Trump appointees joined the Court, a decision that fulfilled a Trump campaign promise might have inadvertently tilted next month’s election toward Harris.

During his ultimately successful race for the presidency in 2016, Trump pledged to appoint Supreme Court justices who would overturn the reproductive freedom established in 1973’s Roe v. Wade decision. He’s boasted since that thanks to his three appointments, “I was able to kill Roe v. Wade, much to the ‘shock’ of everyone.”

The Supreme Court’s reversal of Roe in Dobbs v. Jackson’s Women’s Health Organization in June 2022 had a major effect on the midterm elections a little over four months later. In a post-mortem analysis, Amy Walter, the editor-in-chief of the Cook Political Report, found “abortion mattered most to the kinds of swing voters who Republicans should have been able to win over.” Despite expectations for a “red wave” that would sweep large Republican majorities into office, the Democrats were able to hold onto control of the Senate and lost only nine House seats in those 2022 midterms.

Republicans learned their lesson regarding reproductive rights and are trying to muddy the waters in this year’s campaign. Trump’s running mate JD Vance, who declared in 2022 that “I certainly would like abortion to be illegal nationally,” said in the recent vice presidential debate that the GOP should do a better job “earning the American people’s trust back on this issue.” In a recent ad, Kelly Ayotte, the Republican candidate for governor in New Hampshire who has called for a national abortion ban in the past, attacked those who are “politicizing abortion to win votes.”

GOP candidates such as Vance and Ayotte are not fooling voters, though. Reproductive rights are not going away as an issue in this year’s presidential race. A recent New York Time/Siena College poll finds that abortion is the most important issue for 21% of likely women voters. That’s only two points behind women rating the economy first. (Only 6% of men named abortion as their most important issue.)

Those millions who care dearly about reproductive rights could prove decisive in choosing the next president. Their turnout will get an extra push in the 10 states, including the swing states of Nevada and Arizona, that have reproductive rights on the ballot.

Of course, Harris is not assured of winning the presidency. But if she should win, it will be in no small part because the votes of the Trump-appointed judges in Dobbs unknowingly tipped it her way.

— Keith Raffel is a syndicated columnist with Creators.