In Wake of Dobbs Decision, Left Looks to Defy Court Until They Can Destroy It

AMAC Exclusive – By Daniel Berman

One cannot say the Dobbs decision arrived without warning. Virtually the entire draft of Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health was leaked over two months ago, and almost the only differences between the leaked draft and the final version were segments responding both to the liberal minority and Chief Justice John Roberts’ concurrence. There was something almost ritualistic about the outrage from many Democratic politicians and the left, as well as activists. All the words were there. Shouting and protesting. Demands for unspecified action. Condemnation from the White House. Suggestions that the Court should be expanded, or the ruling defied. But they occurred in a context in which no one took them seriously.

While it is disturbing that leading Democrats and figures in the media have reacted by calling for the expansion of the Supreme Court, it is by now clear that this will not happen. Not because many do not want it to; the left would leap at the opportunity, as they would have even if Dobbs went the other way. Given the left’s reaction to earlier Supreme Court rulings regarding the Second Amendment, and to one the subsequent ruling handed down on Monday allowing a football coach to engage in prayer on the field following a game, it’s clear many would like to very much to expand the Court. Rather, Court expansion will not happen because, after the failure of Build Back Better and various proposals for altering federal election law, it is obvious Democrats lack the votes to break a filibuster, and having voted against Democrats’ efforts to “codify” Roe, Joe Manchin has made it clear he will never support abolishing the filibuster for such a purpose.

The left’s rhetoric in the wake of Dobbs is intended less as a serious call for action today and more as a marker for posterity. Democrats certainly hope that the fall of Roe will produce a backlash which will help them in this year’s midterm elections. But only the most optimistic or delusional believe it will do more than perhaps mitigate their losses. Despite the tone of their rhetoric, the left understands that the decision returns the issue to the realm of the states, and the most extensive abortion restrictions are likely to be implemented in the jurisdictions where any backlash will be least. For swing voters, it is a hypothetical; gas prices, a recession, crime, and the impression of drift emanating from the White House, which the reaction to this decision reinforces, will influence their choices today.

If the outrage is performative, it does not, however, indicate it is meaningless. It represents a sea-change in the attitude of the American left to the entire institutional and constitutional project, one I have described as a “rule or ruin” approach. The American left made its peace with American institutions and an American state that it viewed as stained from birth with illegitimacy and inequality conditional on the belief that the system would inexorably progress in their direction. They were willing to tolerate an Electoral College and Senate they viewed as anti-democratic as long as these institutions only functioned to delay the march toward the left-wing vision of America, and something like the 2000 election of George W. Bush despite Al Gore’s popular vote victory could be forgiven if history reverted to its proper course at the end.

This explains the reaction to Donald Trump’s election, and why, if anything, his departure from office has alienated rather than reconciled American liberals to the current American system. For four years they treated Donald Trump as an accident, a sort of interregnum which, if they obstructed long enough, would go away and be forgotten. Instead, November 2020 and everything which followed confirmed that it was Donald Trump’s loss of office in 2020 which was if anything the aberration, and that if his defeat of Hillary Clinton in November of 2016 required a confluence of narrow factors, the trends which made it possible represented the actual trajectory of American politics. The states Trump won in 2016 which Obama had carried, including Iowa, Ohio, and Indiana, are now solidly red states. Florida and North Carolina, rather than trending toward Democrats, saw those trends reversed. As voting polarized around lines of education and values, Democratic margins among Latinos vanished.

Yet this loss was not only political but cultural. American Liberals had a good run in the culture wars from the 1980s until the 2010s. Almost enough of a run that they confused their culture with American culture. In an environment where the trends seemed to be toward liberalism on gay rights, the environment, education, and even drugs, liberals could be frustrated by Republican appointments to the courts which would slow down the rate of change, but tolerate it in the knowledge it would not matter.

That is why the context in which Dobbs takes place is so important. The reaction among liberals and many Democrats is not really about the merits of the decision itself or the legitimacy of returning decisions on abortion to the states or the political process in general. Rather, it is that the Court is doing so at a time in which their political position within those institutions is weak and appears poised to get weaker, with no end in sight. If Democrats believed that the backlash to Texas or Missouri all but banning abortion from conception would result in them retaking those state governments, their reaction would be different. It is precisely because Democrats do not believe they will be able to wield power in a majority of states for the foreseeable future that they conflate the Supreme Court decision allowing states to pass rigorous restrictions on abortion with the Court imposing them.

This brings us back to the “Rule or Ruin” dichotomy. Nearly a year ago, I wrote that the modern liberal vision of culture and society could encompass only two acceptable positions. Liberals had a historical duty to accelerate the expansion of their values both at home and abroad, which was the origin both of their efforts to impose cultural conformity through the education system and corporate power at home, and also diplomatically and sometimes militarily overseas. Because they viewed the triumph of their values as a historical inevitability, they could accept delays in expansion if necessitated by events, because they knew for a fact that the halt would be temporary, and then the advance would resume. What the left cannot under any circumstances accept is retrograde movement in areas they control on people who do not “consent”. That, in their minds, is tyranny, and is inherently illegitimate, hence the reaction (and definition) of “democratic backsliding” in Poland or Hungary, a term now being applied to the United States.

How does this function in practice in the U.S. in general and with regard to abortion in particular? When it comes to the idea of “Rule,” Democrats cannot accept that legal abortion as a lynchpin of their conception of women’s rights is not a default state. They have a duty to maintain it, and the Court’s decision in Dobbs is not a definition of the Constitution to be respected, but one more political obstacle to be overcome. That a majority of the Court supports Dobbs means no more to them than that a majority of the Senate is Republican. If they can remedy the latter, the idea that remedying the former through court packing would be anything other than the natural follow-up is inconceivable. To them, the Court’s current majority is an obstacle to the correct course of history, a beaver dam in the river. It must be removed so that the waters of progress can flow freely.

If this is a justification for what liberals and Democrats would do in power, it is not, however, a good indication of what they will do out of power, which is where they are likely to be for the next few years, especially if a Republican wins the White House in 2024. In this case, history has already “progressed” in the states they control, and any effort by a Republican president or Congress or other states to roll it back would be an invasion, one they would likely compare to Putin’s move into the Ukraine. In their view, abortion restrictions cannot be justified anywhere, but an effort to impose them in “blue states” would inherently be illegitimate, Constitution or no Constitution. The natural conclusion of this logic is nullification.

Signs of this were already apparent with the Supreme Court’s Second Amendment ruling when suggestions flared that New York should defy it. This fell apart on the obvious question of “how?” With Dobbs, however, several states are already making clear they do not care what other states, the courts, or a future Congress says. They will not recognize laws they view as illegitimate, whether it be warrants issued in other states or restrictions on prescriptions or mailing pills.

Their course of action will be straightforward: to adopt a “turtle approach,” hunkering down in their states and cities and nullifying the impact of state and federal law until they can return to power. In this scenario, federal power and law will only be legitimate when it serves “legitimate” ends once again, in other words, when or if Democrats are back in charge. Until such a time, their obligation to obedience rests on force alone.

This “plan” is informal and represents a mindset more than a program of action. To that end, any effort by those on the right to project some sort of coherent conspiracy or strategy onto the Biden administration or Democratic Party is a mistake. It would nevertheless be an error to ignore what they are doing. The danger of “Rule or Ruin” is the clear logic it presents. Once the attitude is internalized, every next step becomes justified by the previous. Increasingly, American liberals have something more dangerous than a plan. They have a worldview.

Daniel Berman is a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics. He also writes as Daniel Roman.