Law & the Courts

Return of the Concern Trolls

Pro-choice protesters outside of the U.S. Supreme Court in Washington, D.C., June 26, 2018. (Leah Millis/Reuters)
To save Roe, progressives try to persuade conservatives not to attack it.

In the spring of 2012, a poisonous flower bloomed in opinion journals across the land. The Supreme Court had heard arguments in March concerning the constitutionality of Obamacare, and the Left had determined — correctly, as it happened — that Chief Justice John Roberts could be swayed. One could hardly go online in the weeks that followed without encountering some version of their pitch. Not only the fate of the Affordable Care Act but “the legitimacy of the Supreme Court” was at stake in the forthcoming decision, according to The New Republic’s Jonathan Cohn. A conservative takedown of the ACA, Jeffrey Rosen argued in the same pages, would mark “as an irredeemable failure” Roberts’s “stated goal of presiding over a less divisive Court.” Should a right-leaning majority act as expected, Duke law professor Paul D. Carrington suggested in the New York Times, progressives might wish to reconsider “judicial term limits.” Why had Roberts sided with his liberal colleagues, Slate’s David L. Franklin asked when the judgment was announced that summer? “To save the court.”

The notion that the Court needed saving — that its every rightward shift represents a threat to its institutional validity — is, of course, a lie too useful not to be repeated. And though the judicial squabbling over Obamacare would likely be as chaff in the wind compared with a renewed assault on Roe v. Wade, progressives are already preparing to sing the familiar tune.

They’ve written a new prelude, in fact: convince the Republican party to stand down before Anthony Kennedy’s replacement is even named. This argument — insincere and self-interested even by Washington standards — was first floated during the pre-inauguration days of January 2017, when Democrats were still struggling to come to terms with their near-total loss of power. Faced with the prospect that the Supreme Court’s “senior liberal members” might die during a Trump administration, The New Yorker’s Eyal Press contended that the abortion status quo should, in fact, be jealously guarded by reelection-minded Republicans. Despite having long denounced Roe “in the most strident terms,” Press suggested, conservative politicians could ill afford to lose the issue. Indeed, Republican “denunciations mask[ed] an irony: for the conservative movement, Roe has not been such a bad thing.”

Though Democratic ‘concern’ about Republican electoral fortunes is fraudulent on its face, the idea that Republican politicians might face consequences for acting as they should is not, alas, unreasonable.

Unsurprisingly, more recent versions of Press’s assertion have focused on the upcoming midterm elections and the price that Republicans can be expected to pay should they follow through on their desire to replace Anthony Kennedy with a conservative. Writing in Bloomberg three days ago, Sahil Kapur argued that “a nominee who appears ready to cast the decisive vote against Roe could rally the majority of Americans who back legal abortion to turn out for Democrats in the November election.” Appearing on Meet the Press this past Sunday, Democratic pollster Cornell Belcher compared anti-Roe conservatives to “the dog catching the car” and warned them to “be careful what [they] ask for.”

Though Democratic “concern” about Republican electoral fortunes is fraudulent on its face, the idea that Republican politicians might face consequences for acting as they should is not, alas, unreasonable. A Quinnipiac University poll released Monday found that Americans support Roe v. Wade by a two-to-one margin (never mind that most could tell you almost nothing about the judgment’s appalling specifics). A Politico/Morning Consult poll put out Tuesday revealed that 52 percent of voters want a new justice who “supports a woman’s right to an abortion.” Might these voters ensure that the Right suffers for bucking the majority’s will come November? Almost certainly. Here’s the thing about prices, though: From time to time, a person has to suck it up and pay them.

And this, God help us, is one of those times.

It is increasingly easy, in this age of politics-as-team-sport, to lose sight of the fact that political “wins” and “losses” are mere abstractions if unanchored to actual policy achievements. Pursuing various political “victories,” one forgets that the point of immigration enforcement (for example) is not to defeat Democrats but to preserve a culture of lawfulness; the point of entitlement reform is to increase individual liberty; and the point of tax cuts is to maximize American ingenuity by returning capital to the people. One works to elect Republicans not out of base tribal affinity but because Republicans desire an originalist majority on the nation’s highest court. One works to secure that majority because children are dying. Horrifically. Every single day. Those may not be the only reasons, but they are damn good reasons.

Which is not to say that the path from Anthony Kennedy to the end of Roe will be a straight line, or easily traveled. My own cynical prediction is that the whole business will come to nothing, ruined by Democratic maneuvering, the intransigence of Susan Collins, the abysmal batting average of Republican judicial appointees, the self-regard of the chief justice, or any combination of the above. Yet to forgo the attempt because of the Left’s false sympathy — its ridiculous “warnings” that conservatives will destroy themselves in the effort — would be not only cowardly but obscene.

What was it all for if not this moment?

In undoing Roe, conservatives are certain to be opposed by Democrats, independents, the media, the academy, the medical establishment, Christians of the Jesus-never-mentioned-abortion variety (who, let it be said, should really take a closer look at His teachings’ emanations and penumbras), the Republican-party elite, and their own inclination toward judicial modesty. But none of that matters. They must do it anyway.

Life, at long last, hangs in the balance.

Graham Hillard — Graham Hillard teaches English and creative writing at Trevecca Nazarene University.

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