Trump's wish for the Supreme Court may be his downfall

Published on CNN

Despite what many of us want to believe, President Donald Trump is the front-runner in 2020. If you supported him in 2016, you have little reason to regret your choice -- he's working hard to fulfill all his campaign promises. Sure, the polls often show that Trump's approval rating is underwater. But voters are a lot more than just data points graphed onto projections.

No incumbent president in recent history has presided over a strong economy, not been enmeshed in a ground war and lost the next election. So, for those of us who desperately want to see a new president, just telling ourselves that a majority of the voters in key states will see what we see and feel how we feel isn't enough to actually win. It's going to take more than the constant tearing of garments and endless howls of outrage to beat him. It's going to take an outside factor -- like Justice Anthony Kennedy's retirement.

There's no easily foreseeable reason the Senate won't be able to confirm whomever Trump nominates. In theory, Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, could join the 49 Democrats and slow the process, but it may not be realistic to expect every Democrat to stick together, particularly ones up for re-election in red states.

That means the next Supreme Court justice will likely view Roe v. Wade as bad law and eventually vote to overturn it. If the Republicans are smart, they'll do everything in their power to persuade the court to wait until after the 2020 election, since according to the latest Pew poll, a majority of Americans support abortion in all or most cases.

But let's say the five conservative justices can't restrain themselves, accept a case that challenges the underpinnings of Roe, and then overturn 45 years of precedent giving women the right to choose. From a moral standpoint, it's hard to imagine a worse outcome. But from a political standpoint, it may be the only way to beat Trump.

Right now, it's easy to imagine the Democrats' campaign against Trump: "He's amoral. He's diminished the presidency. He's corrupt. He's racist. He's allegedly had sex with a porn star. His West Wing is in constant chaos." All that may be true (though Trump still denies the Stormy Daniels piece). But absent a real case with overwhelming evidence from special counsel Robert Mueller against Trump, none of it is likely to materially change turnout in 2020. The voters knew pretty much all this when they picked him last time -- and that was before he could boast of peace and prosperity (assuming that holds for two more years).

But what if the election isn't about Trump?

If the court hears a challenge to Roe before the next presidential election, it is likely to happen soon. The 8th Circuit, one of the most conservative appellate courts in the country, is reviewing several state abortion law cases from Missouri, Arkansas and Iowa that are good candidates to be appealed to the Supreme Court. If the court takes up one of these cases, it could issue a ruling as early as spring or summer 2020 -- smack in the middle of election season. If states are suddenly given the power to ban abortion, that changes the election -- completely.

Hard core anti-choice voters already voted in 2016. They're going to turn out again in 2020. We know what their ceiling is. But scores of independents, young progressives and people of color stayed home in 2016 because, for many of them, the election was just a choice between two personalities. Whether they like Elizabeth Warren or Bernie Sanders or Joe Biden or Kamala Harris wouldn't be particularly important in 2020, because it would no longer be an election about an individual -- it would be an election about a cause, a freedom, a right.

It would not be about them. It would be about you. It's about putting people in power in the House, the Senate and the Oval Office who can restore your right to choose. That's it. All the flaws of the pro-choice candidate would no longer matter.

There's no doubt that Trump will nominate an anti-abortion judge to the court. There's not much doubt that his nominee is all but confirmed. And absent a ground war or a recession, there's little reason to expect a different outcome in the next election.

Unless the game completely changes. There's one issue in American politics capable of flipping an entire election on its head. And with Kennedy's retirement, it's staring us in the face.

Bradley Tusk