When the U.S. Supreme Court threw reproductive rights and abortion laws in America into upheaval a year ago with the Dobbs decision, a cliché emerged.
Republicans and conservatives, the joke went, were the dog that caught the car.
Once they had it, they didn’t know what to do with it.
The results in Ohio’s special election seem to validate the cliché. Ohio once was a swing or purple state, but now it is a solid red, reliably Republican in almost every statewide and national election.
Citizens of the Buckeye state went to the polls to vote on a measure that aimed to make amending the state constitution more difficult. At present, a simple majority in a statewide vote can change the state constitution.
Both proponents and opponents of the measure saw it as an early skirmish in the war to entrench reproductive rights in the Ohio constitution, which then would invalidate the draconian laws restricting abortion the state’s Republican legislators and governor adopted following the Dobbs ruling.
Ohio voters decisively rejected the attempt to make the constitution harder to alter, 57% to 43%. Turnout was high for a special election, which suggests that the Dobbs decision is reshaping the political dynamics of even red states.
That does not bode well for Republicans as they head into the 2024 election.
But the Ohio vote is important in other subtle ways.
Absent the turmoil created by a high court that seems unbound by precedent, constitutional precept or logic, the proposal to establish tougher standards for altering a state constitution makes sense.
Because, among other things, constitutions enshrine fundamental rights and processes, they should be difficult to amend. A simple majority should not be able to change a constitution because that would put individual liberties on the ballot in every election.
Thus, temporary majorities could deny people rights long considered inherent and turn the way we view constitutional questions into a game of ping pong.
In fact, part of the reason that we Americans are at each other’s throats over abortion is because that is what happened at the national level.
For much of this country’s history, judges — particularly U.S. Supreme Court justices — could not be appointed to the bench without the equivalent of a super-majority vote in the U.S. Senate.
But, as our national politics became more and more rancorous and partisan, both parties realized that a well-organized minority could block court appointments. The entire judicial branch found itself held hostage to politicians who cared more about scoring political points than serving the nation.
To get around this impasse, then U.S. Senate Majority Leader Harry Reid, D-Nevada, embraced what was supposed to be the “nuclear option” — a process that allowed a simple majority to give someone a lifetime court appointment. It was called the nuclear option because it was supposed to be used only in rare circumstances.
When Sen. Mitch McConnell, R-Kentucky, became majority leader, he turned the nuclear into the normal.
He also enhanced the leverage his party enjoyed by inventing a rule that Supreme Court appointments couldn’t be made during election years. He used this new standard to deny President Barack Obama’s nominee, Merrick Garland, even a hearing.
Then McConnell dispensed with his self-created rule to push through Supreme Court appointments during the 2018 and 2020 election years.
All told, McConnell managed with his maneuvering to stack the high bench with three justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — who likely could not have won appointment under the old system.
Those three justices provided the votes that overturned more than a half-century of precedents regarding reproductive rights — and led the court for the first time in American history to restrict rather than expand individual liberty.
Worse, all three of the new justices said during their confirmation hearings that they considered Roe v. Wade settled law.
Clearly, they were less than truthful.
The result of these shenanigans has been predictable. When the rulebook is dispensed with, debates quickly become arguments and arguments rapidly escalate into all-out brawls.
In state after state, we’re now seeing and setting up clashes in which rights Americans consider guaranteed — rights of conscience, the right to bear arms — could be put on ballots.
When the Supreme Court issued its ill-thought-out decision, Republicans and conservatives weren’t the only ones who caught the car.
Thanks to them, we all did.
Now, we must figure out what to do with it.
John Krull is director of Franklin College’s Pulliam School of Journalism and publisher of TheStatehouseFile.com, a news website powered by Franklin College journalism students. The views expressed are those of the author only and should not be attributed to Franklin College. Send comments to [email protected].