By Kevin D. Williamson
Sunday, July 03, 2022
Our friends on the left thought they had a lock on the Supreme Court. What they actually had a lock on was a very narrow slice of elite opinion — which was just as good as having a lock on the Supreme Court, right up until it wasn’t.
Progressives have in many ways been victims of their own success: Because they have been so very effective at colonizing critical institutions — the universities, the media, and, for a generation, the Supreme Court — they have not spent much time sharpening their arguments, and where progressives have not faced effective external opposition to their agenda, they have, predictably, become intellectually flabby and morally thin. They howled like wounded coyotes when Dobbs leaked, and then set about arguing among themselves about whether abortion was a women’s issue or a birthing-persons’ issue — and, predictably, they overlooked entirely that American women are about as likely to be anti-abortion as American men are, and that the pro-life movement has long been carried forward under largely female leadership. Abortion is a bedrock Democratic position, but Democrats are discomfited trying to actually talk about it with anybody who isn’t already a true believer.
Among other things, almost no one has made any serious effort to defend Roe on constitutional grounds, because there really is no constitutional defense of it — there are Democrats who know this and can’t say it, and there are Democrats who don’t know it and wouldn’t say it if they did. As a result, Democrats have immediately been reduced to ridiculous Handmaid’s Tale posturing and retailing risible lies that women are going to end up going to death row over miscarriages and ectopic pregnancies.
From about the time of the Brown decision until Dobbs, progressives had been confident that they could rely on the Supreme Court to make policy for them in those cases — those very frequent cases — in which they are unable to rely on Democrats to implement progressive policies by the ordinary means of winning elections and passing laws. A good deal of that Supreme Court policy-making has been deficient or at least questionable as a matter of constitutional jurisprudence, but the strictly legal questions often have been put aside by progressives — and, in many cases, by Americans at large — who were satisfied with the results as a social outcome rather than as a legal outcome. For example, there was much to criticize about the Brown decision (or, rather, the Brown decisions), and it probably would have been better for the country if the desegregation of our schools had been achieved (to the very modest extent that it actually has been achieved) through school boards and state legislatures and the like, but it also was the case that the pre-Brown regime of de jure segregation was an enormity that could not be permitted to stand.
But the legal and political position of African Americans is a unique question in American life, and Supreme Court policy-making has ranged well beyond that urgent consideration. The so-called right to abortion was exnihilated into existence in 1973, taking a contentious social question out of its proper context — political debate and elections — and making it into an extraordinarily divisive national issue implicating not only the question of abortion per se but also the broader question of where real political power resides and who is entitled to wield it. It had the unhappy effect of folding all disputes about two branches of government — the executive and the judiciary — into the single question of who holds the presidency.
But Democrats were happy to see the Court settle into that superlegislative role, because they were convinced that the Court was going to give them what they demanded in most cases — which, indeed, it reliably did and would have continued to do if the likes of Elena Kagan and Sonia Sotomayor had remained in the majority. Even as the originalist-textualist school of jurisprudence came to prominence and veterans of the Federalist Society rose through the judicial ranks, progressives could count on the Supreme Court to do their bidding: Only a little more than a decade passed between the Supreme Court’s nullification of state sodomy laws in Lawrence and its discovery of a constitutional gay-marriage mandate in Obergefell.
(Democrats who accuse Brett Kavanaugh and Amy Coney Barrett of “lying” about their views on Roe should go back and see what Elena Kagan had to say about the question of a constitutional mandate for gay marriage in her confirmation hearings.)
There isn’t anything about abortion or same-sex marriage in the Constitution, and there is some very direct and plain language about the right of the people to keep and bear arms. Ask a progressive why it is that abortion-rights advocates shouldn’t be obliged to go through the ordinary political process of securing their policy preferences through elections and lawmaking, or why gay-marriage advocates should not have been expected to do the same, or why the actual text of the Bill of Rights should be ignored when it comes to gun rights, you will rarely get any kind of real answer. You will get something very close to: “Because the Great Pumpkin says it must be so!” This will be followed by tears and by morally confident declarations that anybody who disagrees is a racist and a sexist and a gay-hater and whatever else.
Public opinion is a funny thing. The majority of Americans say they support Roe and at the same time say they oppose the abortion regime that Roe once imposed — a seeming contradiction explained by the fact that Americans never really understood what Roe said and what Dobbs now says. I do not believe that majorities sanctify bad policies, but if you look at where Americans actually come down on the abortion question — liberal in the first trimester, increasingly skeptical thereafter, generally supportive of certain exceptions — they are a lot closer to Ron DeSantis than they are to Alexandria Ocasio-Cortez. Why shouldn’t the law look more like what Americans would have voted for pre-Dobbs and now, thanks to Dobbs, what Americans will vote for? Again, Democrats generally cannot answer the question. Democracy is sacred, except when it produces results that Democrats do not care for.
The broad public has a pretty moderate opinion on abortion and the law; the educated and affluent tend to be more pro-abortion; the bellwethers of elite opinion, such as the editors of the New York Times, are radically to the left of the median voter; the typical elite law-school graduate is pro-abortion but may have been skeptical of Roe; the tippy-top of the legal profession — who make up a majority of the Supreme Court today — have a different and, in this case, a more intelligent view. Progressives were good at persuading the editors of the New York Times, and conservatives were good at persuading the now very deep bench of originalist-textualist judges and potential judges who fill the majority of Supreme Court seats and a large and growing share of the federal judiciary. One of those approaches worked better than the other — and one of those approaches has more of a future than the other.
It seems to be only now occurring to progressives how heavily they had leaned on the Supreme Court to act as their cat’s-paw — and how little work they have done to try not only to secure the maximum possible number of Democratic appointments to the Court but, more important, to defend and fortify the intellectual position that made those activist judges such reliable progressive policy-makers for all those decades. And it only now seems to really be becoming clear to them what they have lost by failing to defend that intellectual ground: not only the Roe regime but also much of the progressive activist thinking that made it and similar decisions possible, far-reaching regulatory power and a practically unlimited administrative state. If progressives are shocked by this — and they are shocked — it is because they made the mistake of thinking that convincing the editors of the New York Times was sufficient.
As John Steinbeck once observed, the United States “doesn’t have any self-admitted proletariat.” In some parts of the world, the Left is a genuinely working-class political coalition, but, in the United States, it isn’t: Our working classes, if you will forgive the phrase, are a good deal more socially conservative than the women-with-penises claque that wields such outsized influence within the Democratic Party and other organs of the Left. That disconnect is partly responsible for the election of Donald Trump in 2016, the political development that enabled the most recent transformation of the character of the Supreme Court.
The Left’s woundedness after Dobbs is only partly about abortion politics — it is in a much more significant way an expression of the fact that the Left thinks of the Supreme Court as its own territory. The Left doesn’t cry very much when the world produces a conservative banker, a conservative admiral, or a conservative pastor — the Left has its own interests in finance, the military, and the clergy, but it doesn’t see these as its own institutions, its subsidiaries. The Left has a much more proprietary attitude about the courts, along with the media and the universities. There are lots of mediocre cable-news networks in the world — the Left hates Fox News not because Fox News has so many conservative voices but because a right-leaning cable-news station is a thing that is not supposed to exist as far as progressives are concerned. Conservatives are supposed to be guests on progressive-run shows on progressive-run networks, speaking at the sufferance of the progressives who, in the Left’s understanding of the natural order of things, run the media. Fox News isn’t very good, but, even if it were, the Left would object to its existence.
That’s the same reason the Left hates institutions such as Hillsdale College and sneers at the nascent University of Austin, which does not propose to be right-wing at all but simply proposes to be something other than left-wing, a center of excellence and authentic intellectual freedom. The Left doesn’t hate Ross Douthat the National Review writer; the Left hates Ross Douthat the New York Times columnist, the Ross Douthat who occupies what the Left sees as its own territory. The extraordinary hatred the Left has for black conservatives, female conservatives, and gay conservatives is rooted in the same proprietary thinking: These people are not supposed to exist. The Rust Belt union-hall types who flocked to Donald Trump in 2016 were supposed to be Bernie Sanders voters — in fact, some of them had been Bernie Sanders voters, and the fact that they did not stay on the left for the sake of Hillary Rodham Clinton meant that they had to be — this is the progressive cosmology at work — racists.
Democrats forgot the part where they are meant to ask such people for their votes. Working-class people, African Americans, women, gay people, etc., are just supposed to know where to go and for whom to vote — without being asked, without anybody’s trying to convince them. When this does not happen, the Left is nonplussed or enraged. Why? Because progressives have spent two generations working under the assumption that convincing the editors of the New York Times is enough, that winning the argument at that level of opinion is winning the argument everywhere and for all time.
Meanwhile, political reality has moved on without them.
There is a lesson in this for conservatives. Progressives have for too long relied on a small and shrinking constituency while driving potential allies out of their coalition — because you are never woke enough — while relying on a very limited set of points of power that are small in number even if great in influence. When all of your power is invested in a small handful of institutions, losing one — such as the Supreme Court — is a devastating political setback. It is more practical and more efficacious — if a great deal more work — to build a broad-based movement of generally shared interests and values and to eschew the fanaticism and extremism that naturally limits a political movement of any kind, even if that fanaticism and extremism is useful for fundraising and for winning power in intra-factional disputes and rivalries.
There is a despairing, defeatist strain of conservatism that insists that the Left is always winning, that the Left controls everything, that the Right is feckless, powerless, and hopeless. That is a very strange thing to insist on after watching Sam Alito rip up Roe v. Wade, seeing the so-called John Roberts Court dramatically revealed as the Clarence Thomas Court. That rightist defeatism is at odds with the political facts on the ground.
With progressive economic policies in disrepute, a weak Democratic president, a moribund Democratic Congress, a popular revolt against “woke” excesses, the ascendance of conservative jurisprudence, the enduring robustness of right-to-libertarian counterinstitutions, and other advantageous developments, conservatives in fact at this moment have a historical, generational opportunity in front of us, the main stumbling block (a considerable one) being a dysfunctional and corrupt Republican Party.
The question for conservatives is whether they desire a focused and disciplined politics of responsible social change or the continuation of the politics of catharsis. What conservatives have to offer — what we should have to offer — is pretty good: a politics oriented toward liberty and prosperity, informed by real experience, rooted in the American tradition and our constitutional order, an emphasis on family and community, a preference for a genuinely open and tolerant society, an assertive position in the world and the strength to back it up, openness to innovation, pride in the excellence and fundamental goodness of our country, pride in the decency and accomplishments of the American people, who are our neighbors and not our enemies, whatever our political differences.
Or we could paint our faces and put on our bison horns and see how that works out.
Put another way, the question for conservatives is whether we intend to take our own ideas seriously and seize this moment, or if we instead prefer to repeat the mistakes that have led progressives to defeat and despair. It really is our choice.
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