Democrats’ Legitimacy Gambit

By Kevin D. Williamson

Sunday, December 05, 2021

 

When is an election legitimate? When Democrats win.

 

Does anybody remember the run-up to the 2016 presidential election? For months, Donald Trump and his Republican allies were lectured by Democrats that, no matter what, they had to “accept the outcome.” Democrats were comfortable making that demand, because they were confident that the outcome would favor them — that Mrs. Clinton would win the election. When Mrs. Clinton choked and, comically and improbably, Trump was elected president of these United States, it was Democrats who rejected the legitimacy of the vote, charging — absurdly — that it had been thrown by trolls on Facebook.

 

Mrs. Clinton herself was among the many Democrats who subsequently described Donald Trump as an “illegitimate president.” And our friends in the progressive-dominated media did not chide those Democrats for undermining faith in our democratic institutions — they nodded along, gravely.

 

This was not the Democrats’ first go-’round with rejecting the outcome of an election. They rejected George W. Bush’s victory in 2000 as well, prefiguring the crackpot Trumpists’ 2020–21 project of demanding recounts on preposterous terms. Al Gore went around describing himself as the man who had really won the election.

 

This is part of a long Democratic tradition that goes back at least as far as 1824, when the presidential election went to the House and Andrew Jackson lost to John Quincy Adams. The Democrats’ efforts to steal the 1876 election were positively hilarious: The contested vote was to be decided by a bipartisan commission of seven Democrats, seven Republicans, and one independent, Supreme Court justice David Davis. Illinois’s Democrat-run state legislature elected Davis to the Senate to try to sway his vote; he recused himself, and, ultimately, Republican Rutherford B. Hayes was declared the victor. (If you think American politics is wild today, check out the 19th century — it was bananas, and way beyond a couple of shady Russkies posting fake news on Facebook.)

 

As it goes on Election Day, so it goes on judgment day: When is a Supreme Court decision legitimate? When Democrats win.

 

Democratic partisans ranging from Supreme Court justice Sonia Sotomayor to Representative Alexandria Ocasio-Cortez (N.Y.) have proclaimed that if the Supreme Court does not take the Planned Parenthood line in the Dobbs abortion case, then the Court will have forfeited its legitimacy. (I have kept an off-and-on record of this at National Review under the header “Supreme Court Legitimacy Watch,” though I am afraid my effort is woefully incomplete.) This happens all the time: If the Supreme Court doesn’t impose ACLU preferences on Florida school policy, then its legitimacy is at stake, at least according to Democratic partisans and (not that I expect this is in fact a distinction) Adam Richardson of Slate. South Carolina’s courts fail to take the butchers’ line on when to permit an abortion? Risking its legitimacy, according to Mary Zeigler of the Florida State law school and the New York Times. You can find dozens of examples of the same thing yourselves.

 

Representative Ocasio-Cortez, as if trying to live up to her reputation for dopiness, argues that Supreme Court justice Brett Kavanaugh should be excluded from the case because he has been, in her words, “credibly accused of sexual assault” (the word credibly there is a positive lie), which, hocus-pocus, necessitates that he cannot rule on constitutional questions related to — dreadful marketing, this terminology — “forced birth.” Representative Ocasio-Cortez does not use the word legitimacy in this particular attack — it is, after all, five syllables — but her project is as much one of delegitimization as anything Donald Trump or Steve Bannon ever cooked up.

 

There is no right to abortion in our Constitution. Maybe you believe there should be, but there isn’t. The “constitutional right” to abortion was created through an act of imagination and abuse of power by the Supreme Court in 1973, prior to which the question of abortion had been addressed by democratic bodies through democratic means. Returning to that perfectly legitimate situation is the most that has been demanded by Roe's critics — and here I do not write “abortion opponents” because there are plenty of pro-abortion analysts who understand that Roe is an act of pure judicial imperialism. One branch of government usurping the powers of another is the very definition of illegitimacy.

 

The Supreme Court has made many bad decisions for many bad reasons, and not all of those were in the distant past — cf. the indefensible contortions undertaken by Chief Justice John Roberts to save the patently unconstitutional Affordable Care Act. The Court’s moral credibility is certainly open to question. But if you want to argue that it will forfeit its legitimacy if it declines to do Democrats’ political work for them — the work they properly should be doing in state legislatures and in Congress — then I don’t want to hear any lectures from you about how Fox News or Uncle Joe Bob on Facebook is undermining the legitimacy of our government institutions.

 

I have no sympathy for the jackasses of January 6 or the dead-end Trumpists’ effort to relitigate the 2020 presidential election, but Democrats ought to recognize those plays straight from their own playbook. Representative Ocasio-Cortez et al. may be too dumb to understand it, but if Democrats are going to make the test of legitimacy whether they get their way on policy questions, then they can expect the same thing from at least some parts of the Right. Republicans do not learn quickly or easily, but they do learn.