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At first blush, the fact that Sen. Marsha Blackburn released a video statement over the weekend, criticizing Judge Ketanji Brown Jackson, may not seem interesting. After all, the Tennessee Republican has earned a reputation as one of the Senate’s most reflexive far-right partisans. The idea that Blackburn would even consider supporting a Supreme Court nominee from President Joe Biden is difficult to take seriously.
With this in mind, much of the GOP senator’s statement was forgettable, including Blackburn’s claim that she was “shocked” when Jackson said in writing that she doesn’t have a judicial philosophy, per se. But in the same video, the Tennessean, reading carefully from a teleprompter, eventually said something genuinely interesting:
“Constitutionally unsound rulings like Griswold v. Connecticut, Kelo v. City of New London, and NFIB v. Sebelius confuse Tennesseans and leave Congress wondering who gave the court permission to bypass our system of checks and balances.”
The rhetoric came less than a month after Republican candidates for state attorney general in Michigan also denounced the Griswold v. Connecticut precedent.
Circling back to our earlier coverage, Griswold was a landmark case in modern American history. In 1965, the U.S. Supreme Court, in a 7-to-2 ruling, struck down a Connecticut law that restricted married couples’ access to birth control. The court majority said such statutes are impermissible because they violate Americans’ right to privacy.
This was the first time the justices had ever acknowledged the existence of such a right, and it had a dramatic effect on American jurisprudence, including helping lay the foundation for the Roe v. Wade ruling eight years later.
For much of the last six decades, even Republicans were cautious about criticizing Griswold for an obvious reason: The American mainstream broadly supports public access to birth control. To say that the justices got this wrong is to argue that if a state wants to prevent a married couple from buying contraception, it has the legal authority to do so, since a constitutional right to privacy does not exist.
It’s against this backdrop that Blackburn, a member of the Senate Judiciary Committee, denounced Griswold as “constitutionally unsound.”
Perhaps now would be a good time to ask other Republican senators if they agree?
As we’ve discussed, the conventional wisdom holds that the culture war is an albatross for Democrats in the 2022 midterm cycle. Joe Biden and his party appear eager to focus on so-called “kitchen table” issues — such as unemployment and health care — but election analysts believe it’s Republicans who are likely to capitalize on hot-button issues.
Those predictions may very well come true. The fact remains, however, that Republicans have some vulnerabilities of their own on social issues. Most Americans may not know the Griswold v. Connecticut case by name, but I suspect a clear majority of voters would agree with the justices’ decision. Similarly, the right’s book-banning campaign has plenty of mainstream skeptics, and the Supreme Court’s expected ruling on reproductive rights is likely to be quite unpopular.
Last summer, the Republican Study Committee’s issued an unsubtle memo that was literally titled, “Lean into the culture war.” The document added, “We are in a culture war ... we are winning.”
Whether that advantage continues remains to be seen.
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