By Noah Rothman
Wednesday, July 13, 2022
Activists on the left are beside themselves with “frustration” and “anger” over Joe Biden’s failure to
respond to the Supreme Court’s decision in Dobbs. The president has
folded like an old army cot in response to the challenge presented by the
overturning of Roe, progressives fume, just as he did when he encountered resistance to his legislative
agenda. As the left of his party gnashes their teeth in the general direction
of the White House, the White House clucks its tongue. “Joe Biden’s goal in
responding to Dobbs is not to satisfy some activists who have been consistently
out of step with the mainstream of the Democratic Party,” outgoing White House
Communications Director Kate Bedingfield sniped. A storm is brewing.
This tension is yet another consequence of the
conservative legal movement’s victory over Roe. The president’s
far-left flank remains fixated on the policy outcomes that have and will
follow Dobbs, which leaves them confused as to why the
administration isn’t responding with policy-oriented solutions. By contrast,
the White House remains focused on the new legal environment that the
decision produced. In the process, it has confirmed that the right’s judicial
philosophy has secured an even more sweeping victory than merely
overturning Roe and Casey. Faced with the
immovable object of an originalist judiciary, the president is deterred.
“As President Joe Biden faces calls for more drastic
action on abortion, the legal team vetting his options has found itself
preoccupied by a single pressing concern,” Politico reported earlier this week. “That any action
they could take would simply be struck down by the very court that put them in
this place.” The administration’s lawyers believe that a poorly calibrated
response to the Court’s decision could “backfire,” opening the door to “even
more severe limits” on executive authority.
This admission represents nothing less than a triumph of
a multigenerational campaign of conservative judicial thought. Not only have
the right’s arguments against the ephemera that created a constitutional right
to abortion succeeded but so, too, have their efforts to incept in the
judiciary a philosophy that rejects reflexive deference to the exercise of
executive power. Rather than mount a slapdash assault on this new paradigm, Joe
Biden’s White House is keeping its powder dry and placing the onus on the
federal and state legislatures to do the work of legislating. In so doing, the
Democratic president has reaffirmed the whole point of the conservative legal
project.
Surely, progressive activists will continue to demand
some grand, futile gesture from the administration, and they may yet succeed in
convincing the president to do something reckless and quixotic. But the
principle the White House is acknowledging with its inaction is precisely the
one conservative legal activists have long advocated.
“Judges are not meant to solve our country’s biggest
problems,” the Federalist Society’s Leonard Leo wrote, “that’s the work of the
elected branches of governments and private, cultural institutions.” That
principle is meant to constrain “judicial overreach” and the organs of
executive power, but it was also designed to dissuade conservatives from asking
“judges to do too much and go too far.” In other words, it is a consistent
doctrine with universal applicability. Notably, this is not an argument in
favor of “judicial restraint.” As the Cato Institute’s Roger Pilon wrote in 1991, near the outset of the
right’s long march through the courts, a deferential judiciary legitimizes “the
majoritarianism that grew out of the Progressive Era” when it presumes the
constitutionality of executive actions that are justified by nothing more than
exigency.
Counterintuitively, it may be the American right that
fails to appreciate the scope of conservative judicial philosophy’s triumph. In
June 2020, Sen. Josh Hawley fired off a broadside attacking “the
conservative legal project” and originalism itself. It was too patient, too
prudent, and too devoted to the faithful interpretation of constitutional text
even at the expense of the interests of the faithful. “The bargain is that you
go along with the party establishment, you support their policies and priorities—or
at least keep your mouth shut about it—and, in return, the establishment will
put some judges on the bench who supposedly will protect your constitutional
rights to freedom of worship, to freedom of exercise,” he scoffed. “How has
that worked out for us?”
As a vehicle for the senator’s grander political
ambitions, attacking his fellow conservatives for lacking a “fighting” spirit
suffices. But he’s articulating a misapprehension of what the conservative
legal movement was “fighting” for; not combat but deterrence, a fight that
never had to be engaged because the aggressor in this analogy never fired the
first shot. Whether the senator can summon the consistency to acknowledge this
victory remains to be seen. Joe Biden certainly has.
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