Conservatives have been plotting to overturn Roe v. Wade for 50 years, and they have finally succeeded. They have pulled it off even though the American public overwhelmingly felt that the decision should remain in place, and 61 percent of Americans think abortion should be legal in all or most cases, while only 37 percent say it should be illegal.1 Among all 18-29 year olds (i.e., the ages at which women have the highest fertility rates), nearly three-fourths believe in legal abortion, and since women are more likely than men to support it, this means that: the group of people this decision affects the most are the least likely to support it. If the essential principle of democracy is that those most affected by a decision should have the most say in it, the Court’s recent action is the very opposite of democracy. Even if near 80 percent of young women did not want their right to an abortion taken away, they have been given no choice in the matter. We have gone from “her body, her choice,” to “her body, Brett Kavanaugh’s choice.”
The decision to take away one of women’s fundamental constitutional rights, and to base their rights instead on the framework designed for them by white men in the 18th and 19th century (which the Court’s opinion explicitly said it was doing) is extreme and horrifying. The Court may not be finished, either: as justices Breyer, Kagan, and Sotomayor indicated in their dissent, the logic of the Court’s decision would also justify getting rid of the right not just to same-sex marriage, but to same-sex relationships, as well as the right to use contraception, and Clarence Thomas indicated in his concurrence that that is exactly what the Court should do next.
But how has the right managed to quickly strip half the population of a core constitutional right? Shouldn’t rights be a little better protected than this? It all seemed to happen rather quickly. Donald Trump promised he would stuff the court with justices who would take away the right to an abortion. Then he did just that. And even though the American public voted Trump out of office, the Supreme Court’s insulation from the democratic process meant his judges were still free to carry out the radical agenda he put them there for.
If we are to undo this catastrophe, we have to think clearly about what caused it, and why after the women’s liberation movement scored an incredible victory in 1973, it was possible for conservatives to undo it even without building public support for undoing it. Part of the answer has to do with the fact that American institutions were intentionally designed by the Founding Fathers to make it possible for political minorities to thwart the “tyranny of the majority” (in the Founders’ case, that majority being women, Black people, and Native Americans, who were all considered incapable/undeserving of self-government). But part of the answer too is that the contemporary right understands that in order to achieve ideological objectives, you need to think about how power works and wield it effectively. This insight has seemingly never penetrated most of the leaders of the Democratic Party, who seem to believe that their stated goals, such as protecting the right to choose, can come about through simply getting into office and announcing what you support. This does not work, and until the Democratic Party is led by people who are actually committed to achieving progressive goals, rather than merely publicly professing their commitment to achieving progressive goals, Republicans are going to continue to successfully turn the country into the nightmarish theocracy of their dreams.
Power: How It Works and How To Get It
Power is the ability to bring about an effect. In 1973, the right would have liked to keep the constitutional right to abortion from being announced. But they found themselves powerless. Justice White, in an angry dissent to Roe v. Wade, complained that “as an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review.” Calling it improvident and extravagant did nothing, however, because there were 7 votes to support the right and only 2 votes against. The votes, not the arguments, were what determined the outcome.
This should be obvious, but many contemporary liberals are very naive about power, or do not seem to think it matters. Ruth Bader Ginsburg declined to retire during the Obama administration, which would have ensured a successor devoted to maintaining women’s existing constitutional rights. She felt that retiring for obvious “political reasons,” i.e., to preserve the power to produce a certain outcome, would be undignified. She therefore chose dignity over power. She had to know that if a Republican successor came into office, she would lose the power to choose a successor, and therefore the right would be closer to its longstanding goal of overturning Roe v. Wade. But she appeared to feel that there was something unseemly about calculating how to preserve the power to achieve a desired outcome.
For another naive liberal perspective on power, look at Prof. Akhil Amar of Yale Law School’s “liberal case for Brett Kavanaugh,” published in 2018. Amar says that he is a Democrat, but believes that all Democrats should support Kavanaugh, because Kavanaugh is thoughtful and qualified. (Amar was Kavanaugh’s professor.) Left undiscussed is the question: wouldn’t voting for Kavanaugh give the right the power to take away core constitutional rights that they have indicated they desire to take away? Amar’s only discussion of power comes when he says that if Democrats and moderate Republicans do not vote for Kavanaugh, all those Trump could “plausibly” or “likely” pick would be worse, and Kavanaugh is comparatively moderate. But no senator was under an obligation to vote for a worse candidate, and senators have the power to decide whether a president’s nominee is confirmed. A senator willing to use this power would say that they are only willing to vote for a nominee whose track record clearly shows they would preserve women’s constitutional rights. Instead of using this power, Sen. Susan Collins said she took Brett Kavanaugh at his word when he told her that Roe v. Wade was “settled law.” Once he was appointed, however, Kavanaugh had all the power, and Collins had none. Collins had no ability to bind him to his word. With a conniving operator like Kavanaugh, one must think not just of how to get them to make a promise, but what power one has to guarantee they follow through on it. If they welch, will you just shout at them and call them dishonorable?
Consider the fable of the scorpion and the frog. The scorpion asks the frog for a ride across the pond. The frog points out that the scorpion’s track record shows that he stings everyone he meets and kills them. The scorpion points out that it would not be in his interest to sting the frog, since they would both drown. Halfway across the lake, the scorpion stings the frog. When the frog replies “WTF?” the scorpion says that stinging is in his nature. The two drown.
The frog believed he had some power in the situation. But he did not. He had not answered the question “What if the scorpion does sting me? What will I do then?” He relied on the scorpion’s words and arguments and his confidence that the scorpion would do nothing insane. He should instead have insisted the scorpion bind its stinger. Promises are not enough when dealing with scorpions. Susan Collins and Joe Manchin may have thought that if Kavanaugh betrayed them, it would not be in his interest, since he would look like a liar. But what did he care? Kavanaugh was committed to overturning Roe, regardless of what happened, and he was given the power to do it.
In fact, many in the Democratic Party are even more naive than the frog in the fable, who at least has the guarantee that the scorpion will die with him. Barack Obama was shocked when Republicans responded to his belief in moderation and bipartisanship by treating it as a sign of weakness rather than “coming to the table.” Tyler Moran, Obama’s deputy immigration director, lamented that no matter how many people Obama deported, Republicans kept calling him soft on immigration and refusing to give him credit:
There was a feeling that [the White House] needed to show the American public that you believed in enforcement, and that [we weren’t pushing for] open borders. But in hindsight I was like, what did we get for that? We deported more people than ever before. All these families separated, and Republicans didn’t give him one ounce of credit.
But this is because Republicans do not think in terms of being “honorable” or giving credit where it’s “due.” They think in terms of increasing Republican power, and giving a Democratic president credit and helping to boost him is foolish from this perspective. Rush Limbaugh was quite honest when he said he wanted Obama to fail. Democrats objected at the time that this was unpatriotic, that Rush should want the president to succeed. But Rush understood that he was part of an ideological mission to accomplish conservative political objectives, and that accomplishing these objectives required Barack Obama to get nothing done. (Or required conservatives to talk Barack Obama into enacting their agenda for them, as they did with Bill Clinton.) Obama’s deputy chief of staff was shocked when a Republican staffer told him after the 2008 election “We’re not going to compromise with you on anything. We’re going to fight Obama on everything.” He protested, “That’s not what we did for Bush.” The Republican replied: “We don’t care.” And of course they didn’t. Because what they care about is winning and getting their agenda through, not playing by rules that Democrats think they ought to play by.
At the moment, one reason Democrats refuse to abolish the filibuster is that they fear that if Republicans get into office, they too will operate without the filibuster. As Ruth Marcus writes in the Washington Post:
Do the benefits of doing away with the filibuster, immediate and obvious as they are, outweigh the risks of what a different majority would do down the road? That should be a sobering concern for anyone pressing for its abolition, because a return to complete GOP control is a matter of only a few seats, and the damage that Republicans could do would be immense.
But notice the argument being made, which is that if Democrats do not abolish the filibuster, Republicans won’t do so either. We know that if Republicans came to power, they could abolish the filibuster. The argument assumes that Republicans will be so committed to reciprocating Democratic self-restraint that they will tank their own agenda and resign themselves to action. Democrats are trusting that Republicans will decline to exercise their power to the full extent possible, and are thereby declining to use their own power to the full extent possible.
My view of the Republican Party is more cynical than this. I have seen how Republican concern with procedural norms is entirely selective—with Mitch McConnell blocking Obama’s 2016 Supreme Court nomination on the grounds that he was “following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year” before abandoning this noble traditional principle in 2020. Today, Republicans say that it would be an outrage to abolish the filibuster, and promise they would never do it themselves to achieve political advantage. Once they have taken control of the Senate, I would not be surprised to see Mitch McConnell explaining that he is having the filibuster abolished immediately, on the grounds that he refuses to allow Washington to remain dysfunctional and it’s important to get things done. If he does this, Democrats will be able to loudly protest that this is “unfair.” But there is no “invisible referee” who stops unfair things from happening in the world. If Kavanaugh, McConnell, and Trump are snakes, explaining on Twitter and in fundraising emails that they are snakes does not in and of itself prevent them from doing anything. We must think about what levers of power are available and how we take control of them.
The Need for Strategic Thinking
Republicans think strategically. Trump’s supporters responded to his 2020 loss by trying to replace neutral election officials with ideological allies, because (while utterly unprincipled) this is a rational answer to the question: “Who has the power to give us what we want?” After the 1960s and early ‘70s saw the unprecedented expansion of rights to oppressed groups, the right realized they needed to fight back if the traditional social order was to survive. The conservative legal movement worked for decades to get Roe overturned. They formed branches of the “Federalist Society” at law schools, cultivating rising conservative lawyers and judges. (There was no serious left equivalent, and I remember at law school that Federalist Society events were always well-attended because they had delicious food. I only ever showed up to take the fascists’ food and leave.) As the Wall Street Journal reports:
By the time Republicans regained the appointment power under President George W. Bush, the conservative legal movement had become a mature pillar of the legal establishment. The Federalist Society has grown from its law-school origins into a Washington-headquartered nonprofit with more than 60,000 members and annual revenue of more than $22 million…
They knew what they were doing. In the domain of reproductive rights, they were laser-focused on revoking the constitutional right to an abortion over the objections of the American public. (In other domains, they are similarly focused on destroying the regulatory state and ending all restrictions on corporate power.) They knew that the judiciary is a great place to get things done, because at the top it is almost all-powerful (the Supreme Court can declare any law unconstitutional and prevent its enforcement) and judges are hard to hold accountable through the political process. It is designed to be a counter-majoritarian branch of government, so if you want policies that the majority of Americans oppose, stuffing the courts is extremely useful.
Progressive Democrats need to learn from this. They need to start asking the basic strategic question: “What do I want and what would actually get it for me?” Political actions should be taken on the basis of their likely consequences, not on the basis of whether they embody our noblest aspirations. One reason I (like Bernie Sanders) felt duty-bound to spend the general election in 2016 telling fellow leftists to vote for Hillary Clinton, whom I completely despised, was that it was obvious that a Trump victory could produce catastrophic consequences. He was pledging to take away the right to an abortion, and that’s precisely what he did.
The present Democratic leadership claims to be pro-choice, but they do not act like someone who was pro-choice would actually act, because they do not take the steps necessary to safeguard the right to an abortion. (Likewise, the Democrats in Congress are effectively climate change deniers because their support for stopping climate change is purely rhetorical.) On the campaign trail, Barack Obama duped reproductive rights activists into thinking he cared about their cause, then ditched the fight for abortion protections immediately upon taking office:
- Barack Obama, 2008: “The first thing I’ll do as President is sign the Freedom of Choice Act.” (The video of this moment is so sad, because the Planned Parenthood activists watching cheer with delight and hope, not knowing they will soon be ruthlessly betrayed.)
- Barack Obama, 2009: “The Freedom of Choice Act is not my highest legislative priority.”
Nancy Pelosi, while rhetorically expressing support for abortion rights, was just recently helping an anti-abortion Democrat stay in office and defeat a pro-choice challenger, and has explicitly repudiated efforts to make the Democratic Party uniformly pro-choice. All of which makes the immediate press releases and fundraising emails from top Democrats about the threat to abortion rights ring rather hollow. Words, words, words. Where are the deeds? Before the decision was handed down, choice activists were already furious with the Biden administration for doing nothing to protect abortion rights and having no plan in place to deal with the overturning of Roe. Now Biden is already reiterating his unwillingness to do anything to tame the illegitimate power of the Supreme Court. What we can expect is more lamenting of the right’s terrible deeds without any plan for combating them.
A sign that at least someone in the party understands the basics of strategy came from Rep. Alexandria Ocasio-Cortez, who in a long Twitter thread lambasted fellow Democrats for the pattern of “demoralizing, losing, unfocused nonsense” like saying “just go vote” and “give us $6 to win.” “The President [and Democratic] leaders can no longer get away with familiar tactics of ‘committees’ and ‘studies’ to avoid tackling our crises head-on anymore.” AOC laid out explicit actions she wants taken (opening abortion clinics on federal lands, expanding federal access to abortion pills, restraining the power of the court and expanding the Supreme Court), and said that when Democrats do call on people to vote for them, they need to explain exactly what they intend to do:
For the moments when we do insist on elections, we must be precise with what we need and we will do with that power. … Dem leaders must tell voters the plan. … What’s the actual need? Which specific seats are we focused on? What votes do we need and where. And what’s the return? What is Biden/Congress actually willing [and] able to do at 52/60 seats? … So lt’s wake up everybody! … If you don’t like what I’ve laid out here, then please present your plan instead of little ‘why we can’t lists! Let’s cut the handwringing and get moving.
There are plenty of fair complaints about AOC among leftists, but this is clearly a breath of fresh air and the beginning of the right approach. We must start, as the right does, with the question of power. What do we want and what would we have to do to get it? This will be difficult. But the alternative—wishing for an outcome but letting the right outmaneuver us at every turn, because we are too committed to Principles and Norms to attempt to defeat them—is suicidal and will result in the stripping away of more and more constitutional rights.
Women are, understandably, more likely than men to want their rights protected, and it’s unclear if the majority of women support criminalizing abortion in any of the states where it is about to be criminalized. Even in Wyoming, the most conservative state in the country, it is only the majority of men who think abortion should be illegal—the majority of women believe it should be legal in all or most cases. ↩