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

Posted on Wednesday, June 29, 2022
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by Daniel Berman
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AMAC Exclusive – By Daniel Berman

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Photo courtesy of supremecourt.gov

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.

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PaulE
PaulE
1 year ago

Look back at history, going all the way back to FDR, and you will find that the Democrat Party has always desired to ensure the Supreme Court was essentially nullified and reduced to being a glorified rubber stamp for “Progressive” (Socialist) policies.

In all socialist / communist countries, their versions of a Supreme Court have all been thoroughly packed with party loyalists, whose sole function is to rubber stamp whatever the ruling party legislates in order to give it a veneer of “legitimacy” on the world stage.

President Trump badly upset the so-called “liberal leanings” of the Supreme Court’s make-up by putting some actual constitutional conservatives on the bench to change the balance back towards what the Court was designed to be: A means to ensure the federal government does NOT enact laws that run counter to the limitations placed upon the government by the Constitution. Of course this upsets the “Progressives”, who have no use for the Constitution and seek to either discard it or completely re-write it. Don’t expect the Democrats to just slink away. They NEVER give up. They just change tactics and attack from a different angle. Even now they are working on ways to get their allies in “woke” corporations and the MSM to find ways to circumvent any ground they have lost for the moment.

Steve M Weidert
Steve M Weidert
1 year ago

Impeachment is the answer. The only answer. Biden, Harris, Pelosi, Schumer.

Kay
Kay
1 year ago

Last year 1 in 5 pregnancies were aborted. This is terrible odds. It is time these prochoice have the right to ONE child and no more. They will use abortion over and over without regard to human life. What has become of this country? I am amazed how many women are telling about how many abortions they have had like it gets another merit strike on their shoulder. What happened to taking personal control of your body. Too many contractions today to not get pregnant in the first place.

jocko
jocko
1 year ago

LAWS MEAN NOTHING TO THE CANCEROUS, ANTI-AMERICAN, LYING, CHEATING libs AND CHIMPS. they ARE THE ENEMY OF OUR NATION. OUR NATION, DEVOID OF them = UTOPIA

Christine
Christine
1 year ago

I would never refer to these individuals as “American Liberals.” It’s apparent that they hate America and everything we stand for.

Texas Resister 64
Texas Resister 64
1 year ago

The term “liberal values” is an oxymoron. Nothing about modern “progressivism” is of value.

tika
tika
1 year ago

we knew that.

Stephane
Stephane
1 year ago

Hopefully the DEMON RATS will keep taking their time to work on expanding the Supreme Court…..
We need, as Conservatives, to make our FIRST PRIORITY, in November, if the RATS DO NOTHING, to prevent forever the change in the number of Justices. The Founding Fathers, in their GOD LED DECISIONS, made a very important choice in the number of Justices.
Let’S not allow the DEMON RATS TRAITORS destroy the best country on earth.
Why do all people want to come here? Even as the DEMON RATS TRAITORS are changing all for the worst, just as china and russia and noko are!!!

Philip Hammersley
Philip Hammersley
1 year ago

We know who the REAL insurrectionist are! Borders wide open, drugs flowing freely, mobs vandalizing churches and women’s centers, murders at all-time highs, and a two-tier “justice” system!

Stephen Russell
Stephen Russell
1 year ago

Wrong Goal is to Destroy America

Joseph
Joseph
1 year ago

The Rats are lawless people. And they are not real smart as far IQs go. They are emotional and the rule of law means nothing to them. So nothing surprises me anymore. As I have said before please vote in 2022. It is our last chance to hold some of this leftist scum accountable for their lawlessness. KAG

WilliamB
WilliamB
1 year ago

This has potential to crush the “red wave” in November. Most of these pro choice people are single issue voters (just like pro-2nd Amendment voters). We already have no chance with inner city welfare takers, as they always vote Democrat (Democrats promise more free stuff; Republicans promise jobs.)

I think the only way to get voters to vote against inflation, open borders, out of control greenies, and all the other things the socialists are pushing, is to remove abortion as a difference between Republican and Democrat by putting a separate abortion law on the ballot in every state for “the people to decide.” Otherwise we’re going to see a socialist super majority in the House and Senate and the end of our nation in short order–PLUS they’ll pack the SCOTUS and get abortion plus college debt forgiveness, guaranteed minimum income, and all the stuff that only guraantees 3rd world status for the U.S.

Just my opinion. Our household so far this year has lost 20% of our retirement savings through the stock market and another 10% to inflation. Another year like this, and WE’re going to have to rethink our future.

J. Farley
J. Farley
1 year ago

How about everybody defy, the Left Loonies, they can’t arrest us all and those that get arrested can get full unconditional pardons when we get these Lying, Anti-American, Idiots out of office and out of our lives, which would truly make America Great Again!

Davidme
Davidme
1 year ago

The new Radicalized Far Left Demoncrat Socialist Party members along with the Deep Dark State will Stop at Nothing Unlawful and/or Unconstitutional to Further Their Evil Agenda Against We The People and Our True America!!!!

Barb304
Barb304
1 year ago

I am totally fed up with our federal government. Let’s drain the swamp in November! GOD BLESS the USA

Joanne4 justice.
Joanne4 justice.
1 year ago

Get a grip on life ; and reality . Radical extreme abortion loving women NEED TO USE CONTRACEPTION FOR women AND men. It’s avaliable, cheaper than abortion AND CONDOMS PROTECT WOMEN FROM StD and HIV and HEP C contacted from SKANKY MEN ********

JayJay
JayJay
1 year ago

The Left never appoints impartial Judges who follow the Constitution, their judges (all of them) are political party followers – screw the Constitution. They cannot be allowed to

HocasPocas
HocasPocas
1 year ago

Not in my world

RedState
RedState
1 year ago

I’m anticipating that the Democrat Party will at least with great fanfare try to pack the Supreme Court like the freedom-hating Marxist scum they are. dino

Barrett Smith
Barrett Smith
1 year ago

Democrats have no respect for the law.

D.P.
D.P.
1 year ago

And why would we expect anything else from the left? They are like the spoiled kid who, if he can’t have it his way…will take the ball and go home. In this case, they just can’t stand to loose anything, anywhere, anyway….so by hook or by crook (crook mostly) they will continue to work to ruin this Republic, destroy all that stands for the good, righteous and worthy.

Allan
Allan
1 year ago

Mr. Berman understands the “logic” behind all the left’s original thinking and actions over the last 40-50 years.

President Biden, his staff, Pelosi, Schumer, AOC and the like are simple pawns in the greater scheme.

The majority of any liberal concepts will fail. Why? Because liberalism ultimately causes a loss of rights, a real loss of freedom.

Any person, no matter their persuasion that resides in the USA has experienced said freedom and rights and they WILL NOT allow said freedoms to be taken from them.

The left’s thinking IS NOT logical and most American residents correctly know this.

Because their logic is largely Allanabsent, it cannot fly! Liberalism can ultimately lead to dictatorship via socialism and communism.

Our Democratic Republic has been and is an experiment. It was founded on the guarantee of equality and freedom for all its inhabitants, a concept never before tried in this world.

We ALL want to be free, to have choices, to be at peace and to raise our children to have the same, if not better.

The Founders of this Country, while flawed personally as we all are, we’re true visionaries. They drafted a document which from that time to this day has stood the test of time.

Jeb
Jeb
1 year ago

They are already defying the court via the “stay in Mexico”order, so really, what is one more act of defiance? As long as nothing is done to discipline the defiance it will continue…so here we are.

Rodewaryer
Rodewaryer
1 year ago

Anymore nothing from the left surprises me. The only thing that makes me wonder is, just how dirty does ‘the system’ does have to be to lead to such a blatantly corrupt regime not suffering ANY consequences for their actions.

Bill T
Bill T
1 year ago

Our biggest and most dangerous threat to our freedoms and democracy ever is sitting in the Oval Office

Bill T
Bill T
1 year ago

Here’s our biggest fault, we all work hard, provide for our families and loved ones the best we can. We’re all to busy with our own lives to stop and take our valuable time to do anything w, that’s exactly what these globalist leftist liberals and elites fully understand, and that’s exactly why this is all happening right now. Where at a time where we all almost have to all get together and with the power and spirit of our American citizens STOP THEM! If not this country as we all know and love will FALL! Hopefully we’ll all somehow get together and defeat them. If not then GOD HELP ALL OF US!

David Millikan
David Millikan
1 year ago

CONVENTION of STATES
ARTICLE V.
MAKE YOUR GOVERNORS APPLY IT AND STAND FOR THE UNITED STATES of AMERICA.
THAT’S THEIR JOB IF THEY ARE AMERICANS.

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