The Corner

Law & the Courts

Ill-Gotten Political Gains

Pro-abortion signs are set outside the office of Senator Jeff Flake (R, Ariz.), amid the controversy surrounding Supreme Court nominee Judge Brett Kavanaugh, in Phoenix, Ariz., September 28, 2018. (Nicole Neri/Reuters)

The Left’s meltdown over Brett Kavanaugh — which will be born again in an even bigger and more hysterical form if President Trump and a Republican Senate have the opportunity to nominate another justice or two — is a reminder that the abortion-rights movement and the gun-rights movement are in many ways mirror images of one another.

The gun-rights movement has an advantage: the Bill of Rights. The Second Amendment is right there in black and white (or black and parchment) explicitly recognizing the right of the people — not the state, not the National Guard — to keep and bear arms. The abortion-rights movement doesn’t have a plank in the Bill of Rights: It took an act of extraordinary judicial activism to invent one for them.

And that is what terrifies the Left about the current direction of the Supreme Court. Roe v. Wade represents ill-gotten political gains. While the NRA got a big win in the courts a few years back — one entirely in keeping with the actual text of the Constitution as it exists, not as progressives wish it were — it mainly has advanced its agenda and defended its agenda and defended its gains through ordinary democratic politics. It is not, contrary to the myth, a particularly big political donor or spender (not even in the top 100 last I checked) that gets things done by throwing money around. Until its recent (and, in my view, ill-advised) metamorphosis into a full-spectrum culture-war outfit, the NRA was a very disciplined and narrowly focused single-issue outfit, which made it truly bipartisan: Harry Reid may have been a train wreck on 99.99 percent of the issues, but he was solid on guns, and the NRA credited him for that.

NARAL and Planned Parenthood, who together form what we might understand as the NRA of abortion rights, are above all things terrified that they might be reduced to ordinary democratic political activism in a post-Roe world. They want to defend those ill-gotten gains, and they understand that the American consensus on abortion is a lot closer to the thinking of, say, George W. Bush than it is to that of the butchers’ guild. There is volatility in the polling, but by and large Americans take a pretty liberal view of abortion in the first trimester and in cases involving rape, incest, or serious threats to the health of the mother; they are open to many kinds of restriction and take a much more restrictive view as the pregnancy advances. If democratic preferences prevail, it is likely that U.S. abortion regulation will end up looking something more like what prevails in much of Europe. Not as restrictive as pro-lifers would like, but more restrictive than what we have.

That’s what Americans need to understand about Supreme Court politics right now. The Left has, for more than a generation, been able to generally count on the federal courts as a backstop for their policies when the democratic process yields something other than what they want. Because the Left generally cares less about procedure than it does about outcomes, progressives have not been very much worried about what the Constitution actually says (or how their reliance on judicial activism has undermined both democracy and the rule of law) so long as they get what they want.

The Left is willing to go to extraordinary lengths to defend its ill-gotten gains. Robert Bork knew that. Clarence Thomas knows. Brett Kavanaugh knows, too — which, if he is confirmed, just might making him a very amusing justice, and a very good one.

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