After Dobbs, the many-headed ruling class is licking its wounds … and itching for a rematch.
There is little doubt that the U.S. Supreme Court’s recent ruling in Dobbs v. Jackson Women’s Health Organization was the conservative movement’s biggest political victory in recent times. Mere electoral gains like those in 1980, 1994, and 2010—failing, as they did, to result in substantial legislative change—pale in comparison. The Dobbs decision, meanwhile, actually managed to reverse late 20th-century liberalism’s biggest legislative achievement, as accomplished in the Warren and Burger Courts, which consisted of finding increasingly creative ways to say, “The old separation of powers is abolished. We are the real legislature now.”
Justice Alito’s majority opinion in Dobbs is a blunt repudiation of that whole train of jurisprudence. And by the same token, it is a major blow against America’s ruling class. And by “ruling class,” I mean not only upper-class leftists who have long used judicial activism as a tool to disenfranchise their political enemies, but also the leading lights of the pre-Trump Republican Party. These people, it bears remembering, would sometimes pay lip service to the pro-life wing of their base, but in practice, they always treated the anti-abortion movement as, at best, an unimportant distraction from issues like paying off debts to Wall Street and maximizing America’s involvement in various Middle Eastern wars.
With the collapse of the socially liberal majority that has held sway on the high Court since the 1960s, America’s ruling class has lost a weapon in its struggle to keep the “deplorables” down. But as anyone who has followed the news can see, these elites aren’t exactly walking away with their tails between their legs. The “activist” Court was an important weapon, but it wasn’t their only weapon. They have others. No doubt we’ll see more of those in the future.
As a strategy for maintaining class dominance, the living constitutionalism that prevailed from the days of Justices Earl Warren and William J. Brennan until June of this year worked very well, especially when used against a weak and disorganized opposition. Indeed, it would be silly not to admit that Warren, Brennan, and their ilk were able to govern the way that they did largely because they were ruling over a generation of soft men—men much softer than their ancestors who had fought in the Revolution or on both sides of the Civil War. After all, the parliamentary regime against which Samuel Adams and Patrick Henry rebelled was no more unrepresentative than—and certainly not as destructive as—America’s homegrown system of judicial absolutism would be during its era of peak power, from about 1960 to 1975.
In addition to taking advantage of the softness of its subject peoples, the Warren Court also benefitted from the intense racial discord in society. Under normal circumstances, black Americans—and the whites who sympathized with their struggle for legal equality—would not have been content to live under a political system founded on the disenfranchisement of everyone who was not a progressive lawyer. But at a time when opposition to the Court’s power grabs was driven mainly by the desire of Southern whites to keep the black man down, too many well-intentioned people were willing to ignore the erosion of representative government that accompanied the victories of the civil rights movement.
Just ask yourself this question: were there millions of deeply religious black Americans who were upset about the Supreme Court’s decision to ban prayer in public schools? You bet. But none of these people were going to start marching behind the “Impeach Earl Warren” banner as long as they saw him and his allies as their best line of defense against the likes of Bull Connor.
For the upper-class progressives, divide et impera worked. The one thing that almost all supporters of, say, forced busing had in common was that they were wealthy enough to send their children to schools that weren’t affected by the experiment.
Soon, the Supreme Court found itself playing the role that Octavian and his heirs had played in first century Rome. Like early imperial Rome, the United States was still nominally a Republic. Nevertheless, the elected arm of the U.S. government had been relegated to the role that the senators, consuls, and tribunes played under the principate—that is to say, these elected offices still existed, but their power was limited to those issues on which the emperor (in our case, the Supreme Court) did not have a strong opinion.
However, in addition to its strengths, the dictatorship-by-committee system that the Warren Court had set up and that the Burger Court had expanded upon, also had its weaknesses. One of these was that, unlike in the Roman system, where the stronger emperors were able to choose their own successors, replacement Supreme Court Justices are chosen by the president. While most justices have managed to time their retirements so as to get replaced by someone with a matching ideology, the unpredictability of aging and death has randomly allowed some presidents to get much more nominating power than others.
Progressivism was riding high throughout the 1960s and 1970s, and even after the failed Nixon counterrevolution, the balance of the Supreme Court was still 4-4-1: that is, four liberals, four swing voters, and only one real conservative, William Rehnquist. (This distribution, it is worth noting, was the circumstance under which Roe v. Wade was initially decided.)
But then things started to turn against the left. Jimmy Carter, alone among all presidents who served at least one full term, made no Supreme Court appointments. Ronald Reagan made three, and George H. W. Bush made two. Then Bill Clinton, though he was a two-termer like Reagan, got to fill only two seats.
If Reagan and Bush had taken their commitments to the pro-life movement seriously, then Roe v. Wade would have been overturned during their time in the White House. After all, both of the original dissenters in that case—Byron White and William Rehnquist—were still on the Court when Bush left office. But Reagan’s and Bush’s conservatism was only skin-deep, and despite their campaign promises, they turned out to be content choosing judges of unknown character, such as Sandra Day O’Connor and David Souter, who were then palmed off as wins to the gullible Republican base.
America, therefore, ended up spending almost 30 years under the boot of Justice Anthony Kennedy. Abortion rights remained intact along with the rest of the Supreme Court’s sexual-revolution jurisprudence, which continued to grow with the addition of a number of gay-rights cases. But the Court also gave the right some small wins on First and Second Amendment cases, and nothing it did after 1980, or so, advanced anybody’s agenda by the leaps and bounds that had been common in earlier decades. In short, SCOTUS had become a sclerotic institution, perhaps, dare I say, a conservative institution, in the barest sense of the word, since on most issues it simply defended the status quo.
Then randomness struck again. After three two-term presidents in a row had gotten only two Court appointments each, Donald Trump, in his one term, got three. This happened for no better reason than that both Antonin Scalia and Ruth Bader Ginsburg had shuffled off their mortal coils at exactly the worst times for the progressive left.
If Scalia had died just 18 months earlier or if Ginsburg had held on for 100 days longer, Roe v. Wade would still be in force. Likewise if Donald Trump had given at least one of his Supreme Court seats to a pro-choice judge (and you have to go all the way back to Herbert Hoover to find a Republican president who didn’t). But none of those things happened, and it was the left’s unlucky fate to watch in horror as the smoke cleared away from four years of Trump, revealing a Court with a solid 5-1-3 conservative majority.
And now the left is losing big at the Supreme Court; they are losing on abortion, they are losing on guns, they are losing on religious freedom, and they are losing on the powers of regulatory agencies like the EPA.
As a result, the ruling class is very angry. This should not surprise us, since, for a very long time, these people have been used to doing their governing through courts and administrative agencies, without the pesky interference of voters. In domestic politics, no less than in foreign affairs, they are convinced of the illegitimacy of any regime that does not govern in accordance with their preferences. With typical Orwellian doublespeak, they insist that allowing the abortion issue to be resolved “by citizens trying to persuade one another and then voting” is an attack on democracy. And, perhaps most crucially, as soon as the Supreme Court ceased to be useful to leaders of the progressive left, those leaders began dropping their support for judicial supremacy, the idea that the Supreme Court is the authoritative interpreting body of the Constitution.
This represents a rather important paradigm shift in American politics. For well over 60 years, we have lived under a system where—despite the lip service that was paid to the idea that the three branches of government are coequal and that each limits the powers of the other—the Supreme Court could count on absolute deference from all other organs of government.
If Scalia had died just 18 months earlier or if Ginsburg had held on for 100 days longer, Roe v. Wade would still be in force.
But this may be ending. Ever since Amy Coney Barrett was nominated to succeed Justice Ginsburg, people on the left have been discussing court packing. They have been discussing the Exceptions Clause. They have been pointing out that the Constitution does not actually establish an order of precedence among the three branches of government and that the Court’s claim to be the topmost has been challenged by some of our most respected presidents, such as Abraham Lincoln and Franklin D. Roosevelt.
The left has also been pointing to the reasoning of Madison and Hamilton in the Federalist Papers—arguments to the effect that the judiciary was meant to be the “least dangerous branch” of the federal government, with the Constitution leaving open to the executive and legislative branches plenty of avenues to limit the Court’s powers.
What this means in more down-to-earth terms is that the Supreme Court is about to get a lot less powerful. We must remember that there are only nine justices. They only hear a few dozen cases per year. Their political power depends largely on having a myriad of people in the lower courts, the administrative state, the news media, and the professoriate who are sympathetic to their goals. As long as the Court’s agenda aligned with that of the broader ruling class—that is, with the aims of the wealthy liberals and neocons who fill America’s other governing institutions—the Court had the support that it needed to transform America in accordance with the will of the left. Now that the Court has shifted to the right, it is finding that it has hardly any support for transforming America back to its constitutional origins.
This can be seen in the way that courts other than the U.S. Supreme Court have responded to the Dobbs decision. Once Dobbs was decided, abortion providers in conservative states immediately filed dozens of lawsuits in lower courts asking that their states’ laws against abortion be blocked anyway. Some argued that the laws were unconstitutional because they were vague; most of the vagueness suits lasted for only a few days, but Arizona’s “personhood” law appears to be still tied up in litigation.
Meanwhile in Georgia, when the attorney general asked the district court to lift the injunction on its “heartbeat” law, the district court gave the parties 21 days to file briefs explaining how the new precedent in Dobbs would affect the case. During this time, the law remains on hold. Since it is very clear to everybody that the effect of the Dobbs ruling is to totally remove the abortion question from federal jurisdiction, this is an obvious case of unprincipled foot-dragging on the part of the district court. Still, the left isn’t above such tactics.
Then there are the abortion laws that have been blocked in state courts. State judges in Iowa, Kansas, Kentucky, Michigan, Louisiana, and Utah (yes, Utah!) have ruled that their states’ constitutions include an implicit right to abortion. Since conservative jurists, unlike liberals, tend to adhere to federalism, the federal Supreme Court is very unlikely to do anything about these abuses of power. If political majorities in those states want to ban abortion, they will have to overcome judicial activism all over again at the state level.
One must also consider the fact that after 49 years of legal abortion nationwide, American culture has grown so used to it that majorities in most states have no desire to change the status quo. Thus we see Ron DeSantis, the celebrity conservative governor du jour, putting a bill through the Florida Legislature to ban abortions only after 15 weeks of gestation. For comparison, abortion is prohibited in France after 14 weeks.
Now that banning abortion is a live political issue, we can expect the corporate-media oligopoly to go all-in on supporting the pro-choice side. Thus we see that while the Dobbs decision has created a big leak in the boat of the ruling neoliberal-neocon alliance, the people who make up this alliance are working very hard to plug that leak. They may not get back to having legal abortion in each and every state, but they have so many tools at hand that they are likely to get close. And it remains possible that, if the Democrats win enough senate seats, they will add justices to the Supreme Court or build abortion clinics on federal lands in each state (and try to insulate their decision to do so from judicial review) or do something else aimed at rendering the Dobbs ruling irrelevant.
An effective conservative pushback isn’t likely, unfortunately. After all, past conservative triumphs at the Supreme Court have been successfully undermined by the broader legal profession and the administrative state.Just remember the Masterpiece Cakeshop case, which has been largely ignored by the lower courts, with artists still being sued out of everything they own for refusing to service homosexual weddings.
The Supreme Court is no longer a belligerent in the culture wars. But the state courts, the universities, the press, the administrative state, and the major corporations are still lined up against the American people, and they will continue to wield the bulk of real power in this country. And most of the Republicans who rode into office on the coattails of Donald Trump—just like the hangers-on of George W. Bush before him—have shown that they are unprepared to fight back. Many of them don’t even want to fight back. Consider the Trump-appointed judge who ruled that it is unconstitutional for Alabama to ban parents from sterilizing their minor children with puberty blockers? In the new aristocracy, people from both parties can be thoroughly evil.
But I digress. The point that I am trying to make, in describing the aftermath of Dobbs, is that one does not defeat a hydra by cutting off just one of its heads. And America’s left-leaning elite is now making it very clear that it has heads in places other than the Supreme Court.
Our country is in for hard times. Despite this hard blow, the ruling class is almost certainly going to hang on to most of its power, though it may well end up becoming even more disorganized and sclerotic than it already was.
That is my prediction, at least, of what the future will be like—assuming our country doesn’t simply break apart. Such complete demise is a distant possibility, but I wouldn’t rule it out. Now that liberals have no respect at all for the Supreme Court (or, likewise, for the Senate, whose state-based apportionment helped conservatives take over the Court), it is possible that even secession will be on some tables. Imagine it: Donald Trump wins the presidency in 2024 in a close, fraud-ridden election that ends up being decided along party lines in a Court that every Democrat considers illegitimate. Will the blue states not at least talk about leaving the Union? It is difficult to imagine a secession attempt (or a nullification attempt) being successfully achieved. Would the Army, which is already thoroughly woke, suddenly lay aside its rainbow flags and march against California on behalf of the “Trumpenreich?” Such a thing is hard to imagine.
To put it bluntly, nobody knows the future. But we do know that the people who hold most of the institutional power in this country are not going to relax their grip easily. After Dobbs, they are licking their wounds, snarling with rage, and itching to get back into the ring.
It will take a lot of hard work—and a fair helping of luck—for conservatives to transform the Dobbs case into a lasting victory for the pro-life movement, as well as for the broader cause of reducing federal power. The future looks chaotic, and the exact outcome of this power struggle remains uncertain. The sooner the American people confront the hard realities of the situation, the better their chances.
Image: Cardboard cutouts of the conservative Supreme Court justices propped up by pro-choice activists in front of the Supreme Court before the Dobbs v Jackson Women’s Health Organization decision overturning Roe v Wade was handed down at the U.S. Supreme Court on June 24 (Bill Clark / Associated Press)
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