One of the most misleading accusations thrown at conservatives these days is that they have embraced uniquely “anti-democratic” attitudes during the Trump era. Take, for example, the recent panic-stricken Atlantic piece, “Trump’s Crime against America” — originally headlined “Trump’s Conspiracy against Democracy” — in which Adam Serwer swerves away from his impeachment spiel to condemn social conservatives for selling their souls to the president in exchange for authoritarian efforts to implement their policy preferences:
This is of a piece with the general anti-democracy trend in the Republican Party, which justly fears that the majority of the country no longer supports its agenda, and that extreme measures must be taken to shield its grip on power from democratic accountability.
There is nothing exceptionally un-democratic about social conservatives’ trading their votes for the appointment of judges they think will protect their constitutional rights and way of life. In fact, such transactional politics are a normal, ever-present part of American governance.
Nor, for that matter, is the majority a bellwether of decency or good policy or constitutionally sound governance. Voters, fickle and mercurial, tend to change their positions all the time, and as a result, majorities are rarely permanent. Even if that weren’t the case, Americans would have no civic duty to support mainstream views — and every right to use the courts or other legal means in an effort to stop prevailing policy. There are many conspicuously “un-democratic” constitutional tools that protect the rights of the minority.
What’s more, anyone with a rudimentary grasp of recent history will be able to recall a number of left-wing victories over the past 60 years that were achieved by the courts rather than voters. (To take the most glaring example: For nearly 50 years now, the Supreme Court’s decision in Roe v. Wade has prevented the electorate from deciding on the legality of abortion at the state level.) Yet many of those victories endure despite their “un-democratic” origins, and one doesn’t hear the Adam Serwers of the world complaining about that.
Were Democrats opposed to “democratic accountability” from 2010 to 2016, when they worked to undermine the wishes of Republicans, who controlled the House, the Senate, and the majority of governorships and state assemblies? When President Obama was thwarted by the democratically elected Republican Congress, Democrats implored him to bypass the legislative branch in unprecedented, and often unconstitutional, ways, with DACA being the prime example. Quite often the courts would step in and stop Obama, but other times he crafted wide-ranging executive laws by fiat. Very few on the left spoke out against him.
Even setting aside the hypocrisy of Serwer’s argument, it simply doesn’t pass the smell test. What right not specifically laid out in the Constitution do conservatives demand that courts or the president institute for them? The right not to be forced to pay for someone else’s abortion or contraception? What special powers do social conservatives want to give Trump that other presidents haven’t always enjoyed? The ability to fire his subordinates? The ability to conduct foreign policy?
Besides which, is the social-conservative agenda any less palatable to most Americans than the progressive agenda? Highly debatable. There’s no evidence, for example, that voters are more likely to support the maximalist pro-choice position favored by nearly every Democratic presidential contender than they are to support the maximalist pro-life position favored by most Republican elected officials nationwide. Are more voters likely to back the nationalization of health care than the strengthening of the private health-care market? Do more Americans support liberal immigration policies than restrictionist ones? Trump might be personally disliked by many independents, and he may conduct himself in ways they dislike, but most of his policy positions are well within the traditional contours of mainstream political debate.
In fact, Trump’s greatest accomplishment might be instituting a semblance of balance to the courts by naming judges who limit state power rather than ones who concoct new rights or surrender to the vagaries of public pressure. At the end of the day, conservatives who support the Electoral College, the election of two senators per state, and a president’s appointment of judges who uphold the original intent of the Constitution are embracing appropriately counter-majoritarian ideas, not anti-liberal ones, as the “anti-democratic” charge suggests. Those who want to upend these institutions are another story. They have a lot to answer for.